The First Amendment poses a difficult practical
problem: It is quite short and does not explain what counts as
"speech," what counts as "freedom," or what counts as "abridging."
To fill the chasm between the broad rule and its application to
specific cases, a great deal of thinking has to be done. [1]

On August 7, 1995, President Clinton announced a
sweeping Food and Drug Administration (FDA) proposal designed to
reduce "roughly by half children's and adolescents' use of tobacco
products."[2] If adopted, the rules would dramatically alter the
labeling, sale, distribution, and advertising of cigarettes and
smokeless tobacco in this country.[3] A suit filed by the tobacco industry in federal
court in North Carolina makes numerous jurisdictional, statutory,
and constitutional claims that threaten to render the proposal dead
on arrival.[4] This paper examines the First Amendment issues
created by the FDA's unprecedented proposal to restrict tobacco
advertising aimed at children and to compel manufacturers to
establish and maintain a public education campaign.

The FDA's proposed advertising restrictions,
described in greater detail infra part II, would ban outdoor
advertising for tobacco products within a specified distance of
schools and playgrounds; require print advertising to be in black
and white text-only format except in publications with a
sufficiently high adult readership; ban the sale or distribution of
promotional items containing the name or logo of branded
non-tobacco items; and prohibit brand sponsorship of events such as
concerts and auto races. The FDA also proposes to "require
manufacturers to establish and maintain a national public education
campaign aimed at children and adolescents to counter the pervasive
imagery and reduce the appeal created by decades of pro-tobacco
messages."[5]

The FDA argues that these regulations will
"significantly decrease the amount of positive imagery that makes
[cigarettes and smokeless tobacco products] so appealing" to young
people,[6] and thus will significantly decrease the number of
young people who begin smoking. According to existing evidence,
however, it is uncertain whether advertising restrictions actually
decrease tobacco use among young people-- indeed, as discussed
infra part IV, no consensus emerges from statistical and
anecdotal data as to whether such restrictions would have any
effect at all. This uncertainty results in the two questions that
are the subject of this paper: (1) do the FDA's proposed rules
survive First Amendment scrutiny? and (2) should they?

The FDA addresses these questions in the commentary
that accompanies the proposed rules, but its legal analysis is
wholly unsatisfactory. The constitutionality of most-- but not
all-- of these proposed rules hinges on the application of the
"commercial speech" doctrine.[7] Commercial speech jurisprudence has been among the
most unsettled and unpredictable areas of First Amendment law since
the seminal case of Virginia State Board of Phannacy v. Virginia
Citizens Consumer Council, Inc.[8] The Supreme Court's efforts to define the
category of commercial speech, to scrutinize government attempts to
regulate it, and to justify its decisions by reference to First
Amendment theory and values have been inconsistent and, at times,
irreconcilable. The FDA invoked one strain of this jurisprudence to
conclude that its proposed rules could easily withstand a First
Amendment challenge, but failed even to mention, much less respond
to, the strong arguments, based on both theory and recent
precedent, that the tobacco lobby[9] might make in response.

This paper attempts a much more thorough analysis
of the First Amendment issues raised by the proposed rules. Such
analysis reveals fatal constitutional defects with at least one
aspect of the proposal, concludes that the remaining restrictions
present much closer constitutional questions than the FDA
acknowledges, and argues that the proposal as a whole is difficult
to reconcile with a coherent theory of the First Amendment. Towards
these ends, I take the following approach. Part II describes the
youth tobacco use crisis in this country and presents in greater
detail the FDA's proposed rules. Part III summarizes the relevant
commercial speech principles, including the definition of
commercial speech, the First Amendment values served by protecting
or not protecting it to the full extent of the Constitution, and
the various tests the Supreme Court has used to scrutinize
government attempts to regulate such speech. Part IV applies these
principles to the FDA proposal, draws conclusions as to its
constitutionality, and argues that the proposal contradicts
fundamental First Amendment principles. Part V offers some
concluding observations and suggests an alternative approach to
restricting speech. h~i1k~ncina

II. YOUTH, TOBACCO, AND THE FDA PROPOSAL

A. Youth Tobacco Use in the United States

My grandfather smoked his first cigarette when he
was nine years old. According to my grandmother, he and his friends
would sneak into the alleyways behind their southwest Philadelphia
homes and smoke the cigarettes that they had pilfered from their
fathers and bought with the money made shining shoes. He continued
to smoke for the next fifty years until, remarkably, he was able to
quit in the late 1960's. Nonetheless, my grandfather contracted
lung cancer and died in 1980 of a heart condition that was
aggravated by lung removal surgery made necessary by the cancer.
What caused him to begin smoking will forever remain a mystery. My
grandmother blames the "bad kids that he fell in with in the
neighborhood"-- as she says, "they smoked, so he started too." What
is not a mystery is that his story is typical of millions of
stories since.

The number of American young people who use tobacco
products is staggering. Currently, more than three million American
adolescents smoke cigarettes and an additional one million
adolescent males use smokeless tobacco.[10] The vast majority of the fifty million American
smokers began smoking as children or adolescents.[11] Studies suggest that "the younger one begins to
smoke, the more likely one is to become a heavy smoker, "[12] while those that have not begun smoking by age
eighteen are unlikely ever to do so.[13]

Widespread tobacco use by young people has taken a
disastrous toll on the nation's health. Researchers estimate that
400,000 people die each year from smoking related
illnesses[14] and numerous studies have established causal links
between smoking and cancer, heart disease, and stroke.[15] Studies show that a person whose tobacco use
begins in adolescence and continues over his or her lifetime faces
a fifty percent risk of dying prematurely as a direct
result.[16] Further, the earlier a person's habit begins, the
greater the risk of developing smoking-related diseases.[17] Smokeless tobacco's links to various forms of oral
cancer have been well-documented,[18] and, as with cigarettes, the longer the
exposure to smokeless tobacco products, the greater the risk of
contracting cancer.[19]

Perhaps most alarming is that adolescent tobacco
use is on the rise. Even while smoking rates have declined for most
segments of the American adult population in the past few decades,
the number of young smokers is increasing.[20] According to studies cited by the FDA,

Between 1991 and 1994, the prevalence of smoking by
eighth graders increased 30 percent, from 14.3 percent to 18.6
percent. Among 10th grade students, it increased from 20.8 percent
to 25.4 percent and for 12th grade students, it rose from
28.3 percent to 31.2 percent. Between 1985 and 1994, smoking among
college freshmen increased from 9 percent to12.5
percent.[21]

Another study, completed in 1995, found that
smoking rates among 13- and 14-year-olds had increased thirty
percent in the three previous years alone.[22]

B. The Food and Drug Administration's Proposed
Restrictions

It is against this backdrop of alarmingly high and
steadily rising rates of tobacco use among young people, and the
grave health consequences of such use, that the Food and Drug
Administration proposed its rules. The proposal reflects a
scientific judgment that nicotine addiction should be treated as a
"pediatric disease" and the attendant policy judgment that the
FDA's limited resources should be focused on tobacco use by
children and adolescents.[23] "Rather than banning tobacco products for the
millions of Americans who are currently addicted to them, this
regulation focuses on preventing future generations from developing
an addiction to nicotine-containing tobacco products. "[24] Towards this end, the FDA conducted extensive
research, consulted health officials in this country and throughout
the world,[25] and developed a strategy whose two primary
components are (1) restricting the sale and distribution of tobacco
products to young people, and (2) reducing the appeal of such
products by restricting tobacco advertising and increasing public
awareness of the dangers of tobacco use. This paper concerns the
second category of regulations.

The FDA proposes that the following rules be
included in new part 897 of Title 21 of the Code of Federal
Regulations:

* Educational Programs Concerning Cigarettes
and Smokeless Tobacco Products. Proposed 21 C.F.R. §897.29
"would require each manufacturer to establish and maintain a
national public educational program, including major reliance on
television messages, to combat the effects of the pervasive and
positive imagery that has for decades helped to foster a youth
market for tobacco products."[26] This section would require each manufacturer to
"devote an amount of money to the corrective educational program
proportionate to its share of the total advertising and promotional
expenditures of" the industry as a whole.[27] The rule would further require that the industry
members to "select from a variety of messages maintained by FDA...
[which] would determine which messages are appropriate in
consultation with [other government agencies]. "[28] Manufacturers would also have to report to the FDA
on the effectiveness of the program.

* Outdoor advertising. Proposed 21 C.F.R.
§897.30(b) would "prohibit outdoor advertising of tobacco
products from appearing outside of buildings within 1.000 feet of
an elementary or secondary school or playground. "[29]

* Black and white, text-only ("tombstone')
advertising. Proposed 21 C.F.R. §897.32(a-b) would require
that permissible print advertising of tobacco products be in black
and white, text-only form in all publications that do not have a
primarily adult readership. A publication has a primarily adult
readership if "(a) [its] readers age 18 or older constitute 85
percent or more of [its] total readership, or (b) [it] is read by
two million or fewer people under age 18, whichever method results
in the lower number of young people. "[30]

* Branded non-tobacco items and sponsorship
Proposed 21 C.F.R. §897.34(a) would "prohibit the sale or
distribution of all non-tobacco items that are identified with a
cigarette or smokeless tobacco product brand name or other
identifying characteristic;" §897.34(b) would "prohibit all
proof of purchase sales or gifts of non-tobacco items as well as
all contests, lotteries, games of chance that are linked to the
purchase of, or in consideration for the purchase of a tobacco
product;" and §897.34(c) would further prohibit "a sponsored
event from being identified with a cigarette or smokeless tobacco
product brand name or any other brand identifying characteristic."
Sponsorship would be permitted in corporate name only, and that
corporate name must have been in existence on January 1,
1995.[31]

The sweeping scope of these proposed rules is
apparent from their description.

While tobacco advertising is already subject to
some legal restrictions[32] and is further limited by voluntary industry
codes,[33] the proposed rules go so far beyond existing
restrictions that the tobacco lobby argues that they "would be
tantamount to a ban of all tobacco advertising and
promotion."[34] As draconian as these measures appear at first
glance, they may yet be consistent with the guarantees of the First
Amendment. The next section summarizes the First Amendment
principles and doctrine that govern the constitutionality of the
FDA's proposed rules.

III. COMMERCIAL SPEECH: DEFINITION, THEORY, AND
DOCTRINE

In 1942, the United States Supreme Court held
unanimously that "the Constitution imposes no... restraint on
government as respects purely commercial advertising."[35] The Court offered no further explanation of its
decision, and apparently considered it quite an easy case.[36] After years of criticism of the "casual" and
"almost offhand" nature of this decision,[37] and considerable erosion of the holding,[38] the Supreme Court reversed itself in the landmark
1976 case of Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc.[39] In Virginia Board, the Court overturned a
state prohibition of commercial drug price advertising, declaring
unmistakably that "commercial speech" is protected by the First
Amendment,[40] though not to its full extent.[41] In dicta, the Court explained that "some forms of
commercial speech regulation are surely permissible," but left for
another day a description of these forms. Courts, lawyers,
commentators, and business people have wrestled with this question
ever since. Professor Schauer noted in 1988 that "almost all of the
foundational questions about first amendment protection for
commercial speech remain on the table for consideration and
reconsideration. "[42] While this may be less true in 1996 than it was in
1988, important questions that directly bear on the
constitutionality of the FDA's proposed restrictions remain
unresolved today.

A.. What is "commercial speech"?

The first appearance of the phrase "commercial
speech" in a judicial opinion occurred in a 1971 decision of the
D.C. Circuit.[43] The Supreme Court adopted the term two years later
in Pittsburgh Press-- describing Valentine as the
origin of the "commercial-speech doctrine"[44] -- and has used the term ever since.[45] The Court has been less consistent, however, in
how it has defined what speech counts as "commercial" for purposes
of the First Amendment.[46] A clear definition has been elusive because a
coherent justification for distinguishing commercial from
non-commercial speech has never been made entirely clear, as will
be demonstrated in the following section. Because the reason for a
distinction determines its bounds, the question becomes how to
define the latter without the former.

The Court has most frequently defined commercial
speech as "speech that does no more than propose a commercial
transaction, "[47] but has dropped the "does no more" in recent
cases.[48] Examples of speech categorized as commercial under
this definition include print and broadcast advertising,[49] face-to-face and direct mail
solicitation,[50] and "tupperware parties."[51] In Cincinnati v. Discovery Network, Inc.,
the Court described these forms of speech as "core" commercial
speech, but implied that other forms of speech may nonetheless
qualify for the lower level of protection described infra
part III.C.[52]Discovery Network concerned an ordinance
that regulated the distribution of free magazines, published nine
times per year, containing advertisements for educational,
recreational, and social programs in the area, but also including
"some information about current events of general
interest.[53] The Court noted that many of these publications
could not be categorized as "core" commercial speech, but assumed
for the purposes of that decision that they should all be treated
as such.[54]

The Supreme Court acknowledges that "the precise
bounds of the category of expression that may be termed commercial
speech" are uncertain,[55] and has provided relatively few clues as to how
the outer margins of the category might be identified. The Court
offered a potentially expansive definition in the critical 1980
decision of Central Hudson Gas and Electric Corp. v. Public
Service Commission[56]--"expression related solely to the
economic interests of the speaker and its audience"[57] -- but has never adopted it.[58] Three years later, the Court faced the issue of
whether "informational pamphlets discussing the desirability of
prophylactics in general or [respondent's] products in particular"
should be categorized as "commercial speech."[59] The Court considered three factors-- whether (1)
the speech in question was an advertisement, (2) mentioned a
specific product by name, and (3) the speaker had an economic
motivation for speaking.[60] The Court held that the combination of all three
factors in the case supported the conclusion that the expression
was commercial, but was careful to note that the mere presence of
any one factor does not compel the conclusion that speech is
commercial.[61]

Whether a court regards speech as either commercial
or non-commercial is not merely word-play. The characterization
dictates whether a court applies intermediate scrutiny to a
government regulation challenged in a particular case, or subjects
the law to far more searching review. Indeed, the difference can be
outcome determinative. Thus, the constitutionality of the FDA's
proposed restrictions will hinge in large part on how the regulated
speech is defined.

The FDA proposal would regulate some expression
clearly included in the "core" commercial speech described in
Discovery Network, but would also extend to speech at the
margins of the category. The tobacco and advertising industries
will most likely have to concede that the proposed outdoor
advertising and black and white, text-only restrictions regulate
commercial speech. The Supreme Court has squarely held that
"advertising pure and simple" falls within the category of
commercial speech.[62] The proposed bans on branded sponsorship and
promotional items may present slightly closer questions, however,
and the industry-funded anti-smoking campaign pushes the very outer
limits of the category, if not beyond.[63] These regulations implicate both the
definitional ambiguity and the underlying uncertainty as to the
First Amendment values that justify the commercial! non-commercial
distinction in the first place.

B.Why should the First Amendment protect commercial
speech differently than it protects non-commercial speech?

1.Theories of the First Amendment

Although the language of the First Amendment
suggests no distinction between different categories of speech, the
Court has never adopted the absolutist position advocated by
Justice Hugo Black.[64] Rather, the Court has taken the view that "not all
speech is of equal First Amendment importance"[65] -- that, because certain types of speech have
"less value" than others, they are not entitled to the full
protection of the First Amendment.[66] Such line-drawing presupposes an overarching
theory of the First Amendment that renders the categories of speech
inconsistent with these values readily identifiable. Yet no one
theory has ever been espoused by the court, due largely to the fact
that "[tihe framers seem to have had no coherent theory of free
speech and appear not to have been overly concerned with the
subject. "[67] Instead, three major theories of the First
Amendment have emerged over time, each achieving some degree of
recognition on the Court, each useful to some degree as a guiding
principle for when to protect speech and when not to.

The oldest justification[68] for free speech is that it is the essential
instrument for the discovery of truth in the "marketplace of ideas.
"[69] The argument begins with the premise, as described
by noted First Amendment scholar Thomas Emerson, that the soundest
and most rational judgment is arrived at by considering all facts
and arguments which can be put forth in behalf of or against any
proposition.... lAin individual who seeks knowledge and truth must
hear all sides of the question, especially as presented by those
who feel strongly and argue militantly for a different
view.[70]

Under this theory, the First Amendment prohibits
government attempts to suppress information that contributes to the
search for truth, no matter "how certainly true an accepted
position may seem to be, "[71] no matter how unaccepted the contrary
position.[72]

[S]uppression of information, discussion, or the
clash of opinion prevents one from reaching the most rational
judgment, blocks the generation of new ideas, and tends to
perpetuate error... The only justification for suppressing an
opinion is that those who seek to suppress it are infallible in
their judgment of the truth. But no individual or group can be
infallible, particularly in a constantly changing world.[73]

Presumably, this theory implies no hierarchy of
truths. Speech that leads to the discovery of any truth--
regardless of how mundane or profound-- is protected. Only speech
that in no way contributes towards a search for any truth, that can
not possibly be the basis of any rational opinion, would be left
unprotected by this theory.

A second proposition, equally broad in scope,
equally indebted to the Enlightenment for its origins, is that the
First Amendment fundamentally serves the value of individual
liberty.[74] Again, Professor Emerson explains this individual
"self-realization" or "self-fulfillment" theory most lucidly. He
writes that

[i]t derives from the widely accepted premise of
Western thought that the proper end of man is the realization of
his character and potentialities as a human being. Man is
distinguished from other animals principally by the qualities of
his mind.... It is through development of these powers that man
finds his meaning and place in the world... From this it follows
that every man-- in the development of his own personality-- has
the right to form his own beliefs and opinions.... [, and to
express them].... Hence suppression of belief, opinion, and
expression is an affront to the dignity of man, a negation of man's
essential nature.[75]

Thus, the First Amendment ensures that the
government fulfills its purpose of promoting the welfare of the
individual by prohibiting interferences with personal expression.
Whether the expression "is judged to promote good or evil, justice
or injustice, equality or inequality"[76] is irrelevant to its value under the First
Amendment. So long as speech furthers individual self-realization,
this theory holds it protected. This second theory is arguably
broader in scope than the first, and, indeed, can be attacked on
the grounds that it provides no limiting principle.

The third major theory holds a far narrower range
of speech protected by the First Amendment. According to the
argument espoused most prominently by Robert Bork[77] and Alexander Meiklejohn,[78] the First Amendment is "an instrument to enlighten
public decisionmaking in a democracy."[79] As Garvey and Schauer explain,

[t]he argument from democratic theory for a free
speech principle rests on the assumption of popular sovereignty. If
the people are going to exercise their sovereign power
intelligently they need to be well-informed, and to debate before
deciding.[80]

Meiklejohn argues that the "First Amendment
condemns with its absolute disapproval" any "suppression of ideas
about the common good. "[81] Of course, how broadly one defines the "common
good" determines the breadth of the First Amendment's protection
under this theory, which can be understood as a limited form of the
"marketplace of ideas" argument-- one that values the political
marketplace to the exclusion of all others. Democratic free speech
theorists argue that theirs is the only possible reading true to
originalist intent.[82]

2.Commercial Speech and First Amendment Theory

The Court has held on numerous occasions that
commercial speech must be distinguished from speech "at the First
Amendment's core. "[83]

Commercial speech [enjoys] a limited measure of
protection, commensurate with its subordinate position in the scale
of First Amendment values, and is subject to modes of regulation
that might be impermissible in the realm of noncommercial
expression.[84]

While the Court has clearly explained the
theoretical underpinnings of including commercial speech within the
First Amendment's sphere, its reasons for providing merely a
limited degree of protection have been decidedly unconvincing.
a.Why should the First Amendment protect commercial speech at
all?

The Supreme Court justifies protection of
commercial speech primarily by reference to the "marketplace of
ideas" theory. In Virginia Board, the Court, per Justice
Blackmun, held that bringing speech that "does no more than propose
a commercial transaction" within the bounds of protected expression
serves individual and societal interests in "the free flow of
commercial information. "[85] A particular consumer has a strong interest in the
information that will allow him or her to make informed, rational
decisions about how to spend his or her money. Indeed, as the Court
noted, an individual's interest in such information may be "as
keen, if not keener by far, than his interest in the day's most
urgent political debate. "[86] Moreover, individual consumers making informed
decisions produce, in the aggregate, a net societal benefit. As the
Virginia Board Court noted,

So long as we preserve a predominantly free
enterprise economy, the allocation of our resources in large
measure will be made through numerous private economic decisions.
It is a matter public interest that those decisions, in the
aggregate, be intelligent and well-informed. To this end, the free
flow of commercial information is indispensable.[87]

The Court reaffirmed this reasoning just last term
in Rubin: "the free flow of commercial information is
'indispensable to the proper allocation of resources in a free
enterprise system' because it informs the numerous private
decisions that drive the system. "[88] b.Why should commercial speech not be protected
to the full extent of the First Amendment?

The Court's attempts to justify granting only a
limited degree of protection to commercial speech begin with
Virginia Board's famous footnote 24. In this note, the Court
reasons that there "are commonsense differences between speech that
'does no more than propose a commercial transaction,'... and other
varieties.., that suggest that a different degree of protection is
necessary to insure that the flow of truthful and legitimate
commercial information is unimpaired. "[89] The Court identifies two such differences-- "the
greater objectivity and hardiness of commercial speech"[90] -- and describes them as follows:

[First, t]he truth of commercial speech... may be
more easily verifiable by its disseminator than, let us say, news
reporting or political commentary, in that ordinarily the
advertiser seeks to disseminate information about a specific
product or service that he himself provides and presumably knows
more about than anyone else. Also, commercial speech may be more
durable than other kinds. Since advertising is the Sine qua non of
commercial profits, there is little likelihood of its being chilled
by proper regulation and foregone entirely.[91]

This reasoning is highly questionable as an
empirical matter, and utterly inadequate as constitutional
analysis. First, as Kozinski and Banner persuasively argue, the
verifiability analysis has no application to the image-based
advertising that comprises much of today's commercial
speech.[92] Take such slogans as "Coke is it!" or "There's
something about an Aqua Velva man" or "You and Betty Crocker can
bake someone happy." It is unclear what claims are being made, much
less how one would go about trying to verify them. Further, as
Kozinski and Banner contend, other more objective and therefore
verifiable forms of speech, such as scientific literature, do not
suffer less protection as a result.[93] Last, one could argue just as plausibly that
the more objective a category of speech, the less justification for
government regulation, because such speech is more easily refuted
by counterspeech.[94]

The "hardiness" justification is equally
unconvincing. According expression a degree of protection inversely
proportional to the strength of the motive for expressing it has no
basis in First Amendment theory-- indeed, it runs directly counter
to the notion of "individual self-realization" described above.
Second, the Court provides no empirical support for the proposition
that the profit motive is stronger than other motives for
speaking.[95] What about speech motivated by romantic love? By
religious fervor? Would similar reasoning support a lower standard
for government attempts to regulate such forms of speech as
these?

Remarkably, the Court has never questioned these
justifications for a lesser degree of First Amendment protection.
In recent years, however, the Court has generally moved away from
referring to them-- save for boilerplate references to the
"commonsense differences between commercial and non-commercial
speech"[96] -- and relied instead on two additional
explanations of the "subordinate position" of commercial
speech.

First, the Court has argued that "'[t]o require a
parity of constitutional protection for commercial and
noncommercial speech alike could invite dilution, simply by a
leveling process, of the force of the Amendment's guarantee with
respect to the latter kind of speech."[97] A response to this argument is difficult to
formulate simply because the position has never been fully
explained or substantiated. But the contention most likely starts
with the premise that governments must have the ability to regulate
certain forms of commercial speech-- consumer fraud and securities
regulation, for example-- in the interests of a healthy
economy.[98] Courts would have to uphold such regulations
against First Amendment challenges. If the First Amendment were
held to protect commercial and noncommercial speech equally, and
the protection was weakened in order to permit legislatures to
enact important economic laws, the protection granted other forms
of speech would also suffer. Yet, as Kozinski and Banner once again
argue, it is unclear why the basic content-neutral analysis that is
applied to non-commercial speech would not permit legislatures from
criminalizing consumer and securities fraud, for example, without
diluting the freedom of speech generally.[99] So long as such laws serve an important
government interest unrelated to the suppression of free
expression, and the restriction is no greater than necessary, a
court does not need intermediate scrutiny to uphold them against
constitutional challenges.[100] Kozinski and Banner argue that, at most, minor
statutory modifications may be required, and they cite libel as an
example of expression brought within the realm of the First
Amendment without the dire consequences predicted. [101]

We are left with the argument that lies at the
heart of the distinction between commercial and non-commercial
speech. The Court has argued that commercial speech "is 'linked
inextricably' with the commercial transaction it proposes... so
that the State's interest in regulating this underlying transaction
may give it a concomitant interest in the expression itself.
"[102] The argument is not one based on the speaker's
motive-- the Court has frequently noted that speech motivated
purely by profit may nonetheless be entitled to full First
Amendment protection[103] -- but on the content of the speech itself. The
protection enjoyed by speech that does no more than propose a
commercial transaction is mitigated by the state's power to
regulate the transaction proposed. Carry this argument to its
logical conclusion, of course, and one finds that state power to
make certain products or services illegal would eliminate
all First Amendment protection of the speech that proposes
them.

This logical conclusion was, in fact, the law of
the land very recently. In Posadas de Puerto Rico Associates v.
Tourism Company of Puerto Rico,[104] the Court upheld a

Puerto Rican prohibition of casino gambling
advertising aimed at the island's residents. The Court held that
"it is precisely because the government could have enacted a
wholesale prohibition of the underlying conduct [casino gambling]
that it is permissible for the government to take the less
intrusive step of allowing the conduct, but reducing the demands
through advertising. "[105] The "greater power includes the lesser"[106] reasoning of Posadas inspired a torrent
of criticism,[107] yet remained nominally viable authority until
finally relegated to dicta status last term in Rubin.[108] The "inextricably intertwined" and "concomitant
interest" language cited above suggests very strongly, however,
that a more limited form of the Posadas reasoning-- the
greater power affects the lesser, perhaps-- persists as an
important justification for treating commercial speech as a
second-class citizen of First Amendment doctrine. Yet the Court has
never made clear why one government power influences another
distinct and fundamentally different power, and to what extent.
Until the Court explains this justification, a coherent theory and
definition of commercial speech will remain elusive.

At this point we know only that commercial speech
constitutes a limit on the pure"marketplace of ideas" theory that
justified its protection in the first place.[109] Commercial ideas simply have less "value" than
other kinds of ideas-- government attempts to suppress them warrant
only "intermediate scrutiny" as a result. Why? The Supreme Court's
reasoning amounts to little more than "because we said so, that's
why." Prominent commentators have attacked the notion of protecting
different categories of speech according to their putative "value"
as fundamentally at odds with the First Amendment.[110] For example, Steven Shiffrmn writes that the
very concept of low-value speech is an embarrassment to first
amendment orthodoxy. To say that government cannot suppress speech
unless speech is of low-value sounds like a parody of free speech
theory. The censor will always be inclined to say that the speech
suppressed is of low-value. Thus, the low-value exception mocks the
rule. It seems almost like saying that South Africa has a humane
racial policy except for its treatment of the blacks.[111]

Other scholars rail not just against low-value
speech theory generally, but against classifying commercial speech
as such. Kozinski and Banner argue that "in a free market economy,
the ability to give and receive information about commercial
matters may be as important, sometimes more important, than
expression of a political, artistic or religious nature. "[112] Yet the low-value commercial speech doctrine
remains firmly entrenched in First Amendment jurisprudence. The
next section demonstrates how the uncertain theoretical basis of
the commercial speech doctrine is reflected in the unpredictable
doctrinal framework that has emerged since Virginia
Board.

The commercial speech cases of the late 1970's
reflected the Court's uncertainty as to how to proceed in the wake
of Virginia Board. The Court alternated between balancing
the asserted justifications for regulating speech against those for
permitting [113] and adhering to a non-balancing approach, which
was described by the Court in Linmark Associates, inc. v.
Township of Willingboro:

It is precisely this kind of choice, between the
dangers of suppressing information, and the dangers of its misuse
if it is freely available, that the First Amendment makes for
us.[114]

In Central Hudson Gas & Elec. Corp. v.
Public Sen'. Comm[115] the Court sought to clarify the test by which
government regulations of commercial speech should be scrutinized.
The Court, purporting to reconcile Virginia Board and its
progeny, established what has proved to be an enduring four-part
test.

In commercial speech cases, then, a four-part
analysis has developed. At the outset, we must determine whether
the expression is protected by the First Amendment. [1] For
commercial speech to come within that provision, it at least must
concern lawful activity and not be misleading. [2] Next, we ask
whether the asserted government interest is substantial. If both
inquiries yield positive answers, we must determine [3] whether the
regulation directly advances the governmental interest asserted,
and [4] whether it is not more extensive than necessary to serve
that interest.[116]

While the Court has applied the Central
Hudson test in every commercial speech case since 1980, how
strictly the Court construes and applies it in particular cases
remains unpredictable.[117]

2.The Janus Face of Commercial Speech

The FDA's proposed restrictions on tobacco
advertising squarely implicate the unpredictability of the
Central Hudson test, particularly its third and fourth
prongs. As to the first prong, the FDA has not argued to date that
tobacco advertising "concerns unlawful activity or is misleading,"
though others have made that argument on its behalf.[118] Further, the tobacco and advertising industries
concede that the FDA 's interest in "protecting the public
health"[119] is sufficiently substantial[120] -- they recognize that the Supreme Court has
been unequivocal on this point at least.[121] But "whether the regulation directly advances
the governmental interest asserted" and "whether it is not more
extensive than necessary to serve that interest" have proved to be
extremely manipulable standards. Both the FDA and the tobacco lobby
can make strong arguments that recent precedent supports their
largely irreconcilable interpretations of the Central Hudson
test. Just last term, in fact, "two different but overlapping
majorities of justices pronounced two quite different standards for
evaluating advertising bans and other commercial speech regulation.
"[122] A discussion of these two standards follows.
a.Central Hudson Part Three

In one line of post-Central Hudson
commercial speech cases, the Court loosely construes the
requirement that the government regulation "directly advance" its
asserted interest. The cases decided right after Central
Hudson evidence considerable deference to legislative judgments
that a particular regulation would in fact accomplish its alleged
purpose. For example, in Metromedia, Inc. v. City of San
Diego,[123] the Court held that a local ordinance
restricting the erection of billboards directly advanced the
government's interest in traffic safety. Justice White, writing for
a plurality, reasoned that the California Supreme Court agreed with
many other courts that a legislative judgment that billboards are
traffic hazards is not manifestly unreasonable and should not be
set aside. We likewise hesitate to disagree with the accumulated,
common-sense judgments of local lawmakers and of the many reviewing
courts that billboards are real and substantial hazards to traffic
safety.[124]

The Court was even more deferential five years
later in Posad as.[125] At issue here was a Puerto Rican ban on casino
gambling advertising aimed at the island's residents. The state's
asserted interest in the ban was to prevent increases in crime,
prostitution, and mafia activity, and to avoid disrupting the
island's residents' moral and cultural patterns.[126] The petitioner argued that the ban failed to
advance these interests because advertising of other forms of
gambling, such as horse racing and the lottery, remained
lawful.[127] In rejecting this argument, the Court appeared
to hold the legislature to little more than a good faith
standard.

The Puerto Rico Legislature obviously believed,
when it enacted the advertising restrictions at issue here, that
advertising of casino gambling aimed at residents of Puerto Rico
would serve to increase the demand for the product advertised. We
think that the legislature's belief is a reasonable one....
[Further,] the legislature felt that for Puerto Ricans the risks
associated with casino gambling were significantly greater than
those associated with the more traditional kinds of gambling in
Puerto Rico. In our view, the legislature's [determination]..,
satisfies the third step of the Central Hudson
analysis.[128]

As discussed supra part III, Posadas
has been severely criticized and subsequently limited, though this
aspect of its holding remains nominally good law.

A recent case indicates the Court's continued, if
occasional, willingness to defer to a legislative judgment that a
challenged regulation will directly advance the government s
asserted interests. In United States v. Edge Broadcasting
Co. ,[129] the Court upheld a federal statute prohibiting
radio broadcast of lottery advertising by licensees located in
nonlottery states-- a ban enacted to prevent lottery states from
interfering with the policy of neighboring nonlottery states. The
statute prohibited the respondent-- a North Carolina licensee whose
listeners were 90 percent Virginians-- from broadcasting
advertisements for the Virginia lottery.[130] Respondents argued that the regulation, as
applied, failed to satisfy Central Hudson's third prong
because so few of its listeners lived in a nonlottery state. Yet
the Court, again per Justice White, rejected the argument without
any empirical or statistical analysis, and agreed with Congress's
commonsense judgment that each North Carolina station would have an
audience in that state, even if its signal reached elsewhere and
that enforcing the statutory restriction would insulate each
station's listeners from lottery ads and hence advance the
governmental purpose of supporting North Carolina's laws against
gambling.[131]

The Court did not specify "by what standard
advancement of the government's ostensible purpose is to be
measured. "[132]

Edge Broadcasting notwithstanding, the clear
trend of recent cases has been to hold the government to a high
burden of proof under Central Hudson's third prong.[133] In Edenfleld v. Fane-- decided two months
before Edge Broadcasting!-- the Court described the test in newly
stringent terms, framing the issue as "whether the challenged
regulation advances these interests in a direct and material way.
"[134] The Court explained that: the regulation may not
be sustained if it provides only ineffective or remote support for
the government's purpose.... This burden is not satisfied by
mere speculation or conjecture; rather, a governmental body
seeking to sustain a restriction on commercial speech must
demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree...
Without this requirement, a State could with ease restrict
commercial speech in the service of other objectives that could not
by themselves justify a burden on commercial expression.[135]

Applying this language, the Court struck down a
Florida ban on in-person solicitation by CPA's. Florida justified
the regulation on the grounds that it would advance the state's
interests (which the Court held substantial) in preventing fraud
and deception, protecting privacy, and maintaining the fact and
appearance of independence among CPA's.[136] The

Court held, however, that the ban failed the third
prong of the Central Hudson test, based on (1) the state's
failure to present "any studies" or "anecdotal evidence, either
from Florida or another State" that suggest that a ban would
prevent these harms; (2) the state's submission of a single
affidavit that contained "nothing more than a series of conclusory
statements": and (3) the existence of contradictory
evidence.[137]

Last term, the Edenfield refinement of
Central Hudson's third prong proved the decisive basis on
which the Court struck down a longstanding federal law prohibiting
beer labels from containing alcohol content information.[138] In Rubin v. Coors Brewing Company,[139] the Court held that this law failed to advance
"in a direct and material way" the government's admittedly
substantial interest in curbing "strength wars" among beer
brewers.[140] Characterizing the third prong as
"critical,"[141] the Court rejected the government's argument
that preventing beer brewers from displaying alcohol strength on
beer labels would prevent consumers "from choosing beers solely for
their alcohol content. "[142] The Court agreed with the District and Appellate
Courts' conclusion that "the Government had failed to present any
credible evidence showing that the disclosure of alcohol content
would promote strength wars. "[143] The Court also cited the "overall irrationality
of the Government's regulatory scheme"-- which permitted beer
brewers to continue to advertise alcohol content in the 32 states
that do not themselves prohibit such advertising-- and dismissed
the government's "common sense" and historical arguments.[144] The Court concluded that

[t]he Government's brief submits anecdotal evidence
and educated guesses to suggest that competition on the basis of
alcohol content is occurring today and that [the challenged
regulation's ban] has constrained strength wars that otherwise
would burst out of control. These various tidbits, however, cannot
overcome the irrationality of the regulatory scheme and the weight
of the record. The Government did not offer any convincing evidence
that the labeling ban has inhibited strength wars.[145]

Later in the term, the Court held the
Edenfleld formulation of Central Hudson's third prong
satisfied in Florida Bar v. Went For It, Inc.,[146] but the decision reflected no deference
whatsoever to the legislative judgment in question. Rather, "after
scouring the record," the Court held that a 106 page summary of a 2
year study, containing statistical data and an anecdotal record
"noteworthy for its breadth and detail," adequately supports the
conclusion that the government regulation would advance its
asserted justification in a direct and material way.[147]

The more recent case law indicates, then, that the
FDA will be required to satisfy a high burden of proof in
demonstrating that the proposed restrictions would advance its
interest in public health in a direct and material way. While the
Court might at any time revert to the more deferential approach
exemplified by Metromedia and Posadas, as it did in
Edge Broadcasting, the FDA must be prepared to meet the
standard established inEdenfield, Rubin, and Florida
Bar.[148] Under the test as applied in these three cases,
the constitutionality of the advertising restrictions and public
education campaign will hinge on the FDA's ability to provide ample
scientific, statistical, and anecdotal evidence that these measures
will reduce youth and adolescent tobacco use-- or on the tobacco
lobby's ability to provide sufficient evidence to the contrary.
These arguments are explored in detail infra part IV.B.3.b.
b Central Hudson Part Four

On its face, the language of the fourth prong--
which asks whether the challenged regulation is not more extensive
than "necessary" to serve the government's asserted
ifltere5t[149] -- suggests a "least restrictive means"
test.[150] Indeed, in Central Hudson itself, the
Court explained that "if a government interest could be served as
well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive. "[151] The Court proceeded to strike down a New York
law that ordered electric utilities to cease advertising that
"promotes the use of electricity" as more extensive than necessary
to advance the state's interest in energy conservation.[152] Five years later, in Zauderer v. Office of
Disciplinary Counsel of Supreme Court of Ohio,[153] the Court assumed in dicta the validity of the
"least restrictive means" approach.[154]

Despite the Court's nominal adherence to the
protective Central Hudson standard, the cases made clear
that the Court favored a more flexible approach.[155] Finally, in Board of Trustees of the State
University of New York v. Fox,[156] the Court explicitly retreated from the
"least restrictive means" standard and adopted a more lenient test.
After summarizing "the conflicting tenor of [its] prior dicta," the
Court "focus[ed] on this specific issue for the first time," and
concluded that the "subordinate position [of commercial speech] in
the scale of First Amendment values" required "something short of a
least-restrictive means standard."[157] The Court described the appropriate standard
as follows:

What our decisions require is a '"fit" between the
legislature's ends and the means chosen to accomplish those
ends,'...- a fit that is not necessarily perfect, but reasonable;
that represents not necessarily the single best disposition but one
whose scope is 'in proportion to the interest served,'.., that
employs not necessarily the least restrictive means but... a means
narrowly tailored to achieve the desired objective. Within those
bounds we leave it to the governmental decisionmakers to judge what
manner of regulation may best be employed.[158]

The Court did not apply the standard as the case
was remanded for further proceedings. The Court did apply the
Fox refinement of Central Hudson's fourth prong in
upholding the state regulations challenged last term in Florida
Bar.[159] At issue in this case were bar rules prohibiting
lawyers from using direct mail to solicit personal injury or
wrongful death clients within 30 days of accidents.[160] The asserted government interest was "protecting
the privacy and tranquillity of personal injury victims and their
loved ones against intrusive, unsolicited contact by lawyers.
"[161] The Court rejected petitioners' argument that
the ban's failure to distinguish between victims in terms of
severity of injury or state of mind rendered it insufficiently
tailored to the asserted interest, and held the rule "reasonably
well-tailored to its stated objective of eliminating targeted
mailings whose type and timing are a source of distress to
Floridians, distress that has caused many of them to lose respect
for the legal profession. "[162]

Florida Bar revives the deferential
Fox refinement, which appeared to have been limited by the
Court's decisions in City of Cincinnati v. Discovery
Network,[163] and Rubin v. Coors Brewing Co.[164] In Discovery Network, the challenged
ordinance prohibited the distribution of commercial handbills on
public property, a ban "motivated by [the city's] interest in the
safety and attractive appearance of its streets and sidewalks.
"[165] Because the effect of the law was to require the
removal of 62 commercial news racks from public locations, while
1500-2000 "noncommercial" news racks were permitted to stay,
commercial publishers argued that the regulation did not have the
requisite fit with the city's interest in reducing visual
blight.[166] The Court agreed, holding that the fact that the
city failed to address its recently developed concern about news
racks by regulating their size, shape, appearance, or number
indicates that it has not carefully calculated' the costs and
benefits associated with the burden on speech.[167]

The Court carefully explained in a footnote that
its decision did not mark a return to the least restrictive means
test, but "if there are numerous and obvious less-burdensome
alternatives to the restriction on commercial speech, that is
certainly a relevant consideration in determining whether the 'fit'
between ends and means is reasonable. "[168]

In Rubin, the Court appeared to reinforce
Central Hudson's fourth prong even further. Having already
held that the federal prohibition of alcohol content on beer
labeling failed Central Hudson's third prong, the Court noted in
dicta that the regulation was also insufficiently tailored to its
goal. The availability of "several alternatives" to the
prohibition[169] -- not "numerous and obvious less-burdensome
alternatives"-- "indicates that [the challenged regulation] is more
extensive than necessary. "[170]

Thus, the fourth prong of the Central Hudson
test is even more unpredictable than the third, with no clear trend
emerging from even the most recent cases. The Court purports not to
adhere to a least restrictive means test, but Rubin suggests
that the existence of any alternative less burdensome of commercial
speech may jeopardize the constitutionality of the challenged
regulation. As discussed infra part IV.B.4, the tobacco
lobby's ability to demonstrate the existence of less burdensome
alternatives will determine the fate of the proposed rules under
the fourth prong.

IV.THE CONSTITUTIONALITY OF THE FDA'S PROPOSAL

As the foregoing analysis makes clear, the Food and
Drug Administration proposes its regulations of tobacco advertising
aimed at young people amidst considerable doctrinal inconsistency
and theoretical uncertainty in the law. Yet the FDA, after taking
just three pages of the Federal Register to spell out its legal
analysis,[171] concludes with apparent ease that both the
advertising restrictions and the education campaign "would
withstand any First Amendment challenge. "[172] As this part makes clear, the FDA's analysis of
the constitutional issues raised by its proposal is far too
simplistic. The tobacco lobby can mount an extremely persuasive
argument that (1) the public education campaign coerces fully
protected speech, and should be struck down under strict scrutiny;
(2) the rules that concern only commercial speech nonetheless fail
the Central Hudson test as it has been defined in recent
cases; and (3) irrespective of any doctrine, a coherent theory of
the First Amendment holds the regulations unconstitutional. This
part addresses these arguments in turn.

A. Does the FDA propose to regulate more than just
commercial speech?

The FDA assumes without a word of analysis that the
speech it proposes both to restrict and compel is entirely
commercial. This assumption is only partly well-founded. The
Supreme Court's clear holding that "advertising pure and simple" is
commercial speech[173] forecloses an argument that the proposed
restrictions of outdoor advertising and advertising in publications
without a primarily adult readership should not be subjected to
intermediate scrutiny.[174] Indeed, such advertising is at the "core" of
commercial speech as identified in Discovery Network.[175]

A slightly closer question might be presented by
the proposed prohibitions of (1) selling or otherwise distributing
promotional items bearing the name, selling message, or logo of a
tobacco product, and (2) sponsoring any athletic, musical,
artistic, or other event that involves the use of the corporation,
or a brand name, selling message, logo, or other indicia of product
identification. These forms of commercial expression are designed
to promote what advertising mogul Leo Burnett once described as
"friendly familiarity,"[176] or brand awareness. While they do not propose a
specific transaction, as does most "core" commercial speech, such
promotional activities build "a growing familiarity with a product
name and trademark and confidence in it. "[177] Increased familiarity results in increased
market share, and thus an increased number of commercial
transactions.

There is little constitutionally significant
distinction between advertising and these forms of promotional
expression. Indeed, the reason for putting a brand logo on a hat or
a car or a concert t-shirt is to create moving (and often human)
billboards for particular products.[178] As Public Citizen argues, the "FDA took pains
to limit the reach of its proposed rules to those activities
undertaken by tobacco companies and their advertisers to promote
the sale of tobacco products.[179] Under Bolger v. Youngs Drug Products,
Inc.-- where the expression's "reference to a specific product
name" and "economic motivation" were two factors that supported the
Court's conclusion that the suppressed speech was commercial--
these forms of expression are clearly commercial.[180] The expansive definition of commercial speech
offered in Central Hudson ,[181] and the Court's decision in Discovery
Network to subject a regulation of non-core commercial speech
to the Central Hudson test,[182] clearly suggest that the definition of
commercial speech is not narrow and formalistic.

The tobacco lobby might respond that, because
categorizing expression as "lowvalue" speech renders it more easily
suppressed, the dangers of censorship mandate that a court act
cautiously at the margins of the category. This caution requires a
court to note that a third factor was at work in Bolger, the
Central Hudson definition has never been followed, and the
speech at issue in Discovery Network bears no resemblance to
these expressive promotional activities. The argument that such
promotional expression is not commercial speech breaks down,
however, upon trying to explain what else it is. Attempts to paint
such expression as examples of self-realization or political speech
would be unconvincing for obvious reasons.[183] In addition, no Supreme Court case supports the
literalist notion that only speech that "does no more than propose
a commercial transaction" counts as commercial speech for the
purposes of the First Amendment. In the final analysis, no basis
exists for treating these forms of promotional expression as
anything but commercial speech. [184]

The same may not be said, however, of the FDA's
proposed public education campaign. As noted supra part
II.B., proposed section 897.29 "would require each manufacturer to
establish and maintain [at a cost of $150 million per year] a
national public educational program, including major reliance on
television messages, to combat the effects of pervasive and
positive imagery that has for decades helped to foster a youth
market for tobacco products. "[185] It is well-settled, of course, that rules that
coerce speech may violate the First Amendment just as easily as
laws that suppress it. [186] Unless the expression compelled is deemed
commercial, such a regulation is unconstitutional unless it is the
least restrictive means of achieving a compelling government
interest.[187] Much rides, then, on the FDA's ability to
characterize the speech as commercial.

The proposed public education campaign appears to
coerce "fully protected-- not commercial'-- speech. "[188] P. Cameron DeVore and Burt Neuborne, two of the
nation's foremost authorities on commercial speech jurisprudence,
vigorously argue this point on behalf of the Association of
National Advertisers.

This "education program"... compels manufacturers
to engage in fully protected--not commercial-- speech by financing
and disseminating the government's viewpoint on issues of public
importance.... The messages the FDA proposes to require
manufacturers to disseminate do not contain commercial speech.
Although the manufacturers would be required to pay to produce and
broadcast these messages, none of the messages proposes a
commercial transaction or clarifies the terms or conditions of a
commercial transaction. Rather, these messages would contain speech
on addiction, the health risks associated with beginning to smoke
at a young age, and dealing with social influences experienced by
young people.[189]

In a similar vein, former Judge Robert Bork,
writing for the Washington Legal Foundation and an informal
coalition of race car drivers, argues that "[t]his speech... would
not be 'commercial' under any accepted definition of the term.
Rather, the content of these messages are to be educational in
nature. "[190]

While the outer margins of the commercial speech
category are uncertain, the FDA1 s proposal contradicts
even the vague contours that emerge from dicta. In Virginia
Board, for example, the Court noted that "the speech whose
content deprives it of protection cannot simply be speech on a
commercial subject. No one would contend that [a] pharmacist
may be prevented from being heard on the subject of whether, in
general, pharmaceutical prices should be regulated, or their
advertisement forbidden. "[191] Likewise here, the FDA would coerce the tobacco
industry into speaking about whether, in general, kids should
smoke. That "money is spent" to project the expression does not
cause it to lose First Amendment protection.[192]

While the FDA asserts that the education campaign
would be consistent with disclosure and corrective advertising
requirements upheld in commercial contexts, even Public Citizen--
which defends the constitutionality of every other aspect of the
proposed rule and "applauds the FDA's goal" of establishing a
"comprehensive public education campaign"-- concedes that existing
case law does not support such an ambitious program.[193] First, the FDA begs the definitional question by
citing cases where the compelled speech was clearly commercial.
[194] Second, a crucial distinction between the FDA's
proposal and other constitutionally permissible rules compelling
speech is that the FDA proposes to require speech "entirely
distinct from any speech initiated by product manufacturers
concerning" the sale of tobacco products.[195] For example, in Zauderer v. Office of
Disciplinary Counsel of Supreme Court of Ohio,[196] the Court upheld a state bar rule requiring
attorneys who advertise their willingness to work on a contingent
fee basis to disclose that clients may have to bear litigation
expenses even if they lose. The Court reasoned that the state had
attempted merely to require "that appellant include in his
advertising purely factual and uncontroversial information
about the terms under which his services will be available.
"[197] Compare the messages compelled by the FDA's
educational campaign, which would not be uncontroversial, would
have no direct bearing on the terms of a particular transaction,
and would appear entirely separate from tobacco advertising--
indeed, the program would be partly on television and radio, where
tobacco advertising is prohibited![198]

Once it becomes apparent that the FDA's proposed
education campaign would compel fully protected speech, its
unconstitutionality is clear in light of Pacjflc Gas &
Electric Co. v. Public Utilities Commission of California,[199] where the Court struck down a far less drastic
attempt to compel "non-commercial" speech about a commercial
subject. At issue in this case was a state requirement that public
utilities provide ratepayer advocacy groups access to utility
newsletters included with customer bills.[200] The Court reasoned that, because the newsletter
and the envelope itself belonged to the utility, the agency
impermissibly compelled the utility to engage in fully protected
speech by requiring it "to use its property as a vehicle for
spreading a message with which it disagrees. "[201] In the present case, not only would the tobacco
industry "disagree" with much of what the FDA would compel it to
say, but the FDA would choose the messages that would run directly
counter to the industry's financial interests.[202] That the messages may contain statements of fact
does not render the proposal any more constitutional, as the Court
has clearly held.[203] Once again, even Public Citizen concedes that
the theory that it is "constitutionally permissible to compel a
company to fund a message that it finds abhorrent as a condition of
allowing the company to engage in other commercial, expressive
activities" is unlikely to prevail.[204]

Thus, the public education campaign fails even to
get to first base, and only the FDA's proposed restrictions of
advertising and promotional activities move on to be subjected to
the Central Hudson test.

B.The FDA Proposal and the Two Faces of Central
Hudson

The FDA argues that its proposed restrictions of
tobacco advertising are designed to reduce the appeal of tobacco
products to young people.[205] Because "advertising and promotional activities
can influence a young person's decision to smoke or use smokeless
tobacco products," the FDA contends that reducing their appeal will
reduce the number of young people influenced by them.[206] As this section demonstrates, whether these
conclusions are true as empirical or scientific matters is
uncertain. The critical legal question is whether the proposed
restrictions are nonetheless constitutional in spite of this
uncertainty. In its legal analysis, the FDA relies exclusively on
the line of cases most deferential to legislative judgments and,
therefore, most permissive of government regulations of commercial
speech. Not surprisingly, the FDA concludes the Central
Hudson test easily satisfied. This section attempts a more
complete analysis, taking account of the competing strain of the
case law, drawing conclusions far more hesitantly as to the
constitutionality of the scheme.

1.Is tobacco advertising "misleading' or does it
"concern unlawful activity"?

As noted supra part III.C.2., the FDA does
not argue that tobacco advertising falls outside the scope of the
First Amendment's protection altogether on the grounds that it
concerns "unlawful activity" or is "misleading." One might have
expected the FDA to make either argument, or both, as Public
Citizen urges in its comment.[207] The FDA presents evidence elsewhere in its
proposal that "much of the promotional efforts of the tobacco
industry are geared toward an illegal end-- inducing minors to try
and break the law by obtaining cigarettes and smokeless tobacco
products that may not legally be sold or otherwise provided to
them. "[208] For example, the FDA describes industry
documents that it claims suggest not only that tobacco
manufacturers know that their advertising campaigns induce minors
to smoke, but that certain campaigns (like the one featuring the
notorious "Joe Camel") were initiated precisely for this
purpose.[209] Further, the FDA's intent generally is to
restrict the "ubiquitous images and messages [that] convey to young
people that tobacco use is desirable, socially acceptable, safe,
healthy, and prevalent in society"[210] -- images and messages that the FDA believes
to be deceptive.

The FDA's decision not to adopt this line of
argument may be represent a strategic decision to stake out a
moderate position in the hopes that the industry would more readily
accept it.[211] If so, the Liggett Group's recent settlement
suggests that the strategy may be paying off. The decision might
rest on other considerations, however, such as the substantial
difficulty and cost involved in attempting to prove such claims;
the body of lower court case law treating similar types of
advertising as concerning lawful activity and not
deceptive[212] ; avoiding jurisdictional overlap with and
intrusion on the Federal Trade Commission. Whatever its reasons,
because the FDA has not drafted its proposal (nor has the lobby
drafted its comments) with these arguments in mind, a full analysis
of these issues at this point is premature and thus beyond the
scope of this paper.

2, Is the FDA's asserted interest substantial?

The FDA asserts that its interest in proposing
these restrictions is to promote public health by reducing the
death and disease caused by tobacco products.[213] As noted supra part III.C.2., the Supreme
Court has held an asserted interest in the public health
sufficiently substantial in several cases,[214] and would surely do so here. While conceding
that the FDA's "articulated interest in protecting minors from
physical harm clearly is substantial," the tobacco lobby argues
that this "is hardly an interest directly served by the
regulations. "[215] Instead, the industry argues that "the only aim
these regulations can be said to serve in any direct way is
that of helping to delegitimize smoking... to acculturate citizens
to abandon the notion that smoking is socially acceptable and to
embrace the ideals of a smoke-free society. "[216] The goal of "this paternalistic campaign," the
industry concludes, "cannot even be deemed a legitimate, let alone
substantial" interest.[217]

This argument misunderstands the second prong of
the Central Hudson test. The argument that the restrictions
do not directly advance the asserted interest bears on the third
element of the test. Further, the Central Hudson test does
not appear to contemplate an inquiry into the government's "real"
motive for enacting a rule. The second prong asks merely "whether
the asserted government interest is substantial. "[218] The tobacco lobby cites, and further research
reveals, no commercial speech cases invalidating state action on
the grounds that the government's asserted interest was not, in
fact, the actual motivation behind the law.

The FDA's ability to satisfy Central
Hudson's critical third prong hinges first on how its burden of
proof is defined. Predictably, the FDA argues that it should be
held to the extremely deferential Central Hudson third prong
standard articulated in Edge Broadcasting, Posadas, and
Metromedia.[219] The FDA defines for itself the lowest possible
burden:

The Supreme Court has stated that, when determining
whether an action advances the governmental interest, it is willing
to defer to the 'common-sense judgments' of the regulatory agency
as long as they are not unreasonable. Metromedia, 453 U.S.
at 509 ("We likewise hesitate to disagree with the
accumulated, common-sense judgments of local lawmakers...
").[220]

At first glance, making this claim without so much
as a "cf" of the competing standard defined in
Edenfield and Rubin smacks of wishful
thinking.[221] Yet a pair of recent Fourth Circuit decisions
bolsters the agency's contention that this, indeed, is the
applicable rule.

In Anheuser-Busch, Inc. v. Schmoke, the
court rejected a First Amendment challenge to a Baltimore ordinance
prohibiting outdoor advertising of alcoholic beverages in "publicly
visible locations," including "outdoor billboards, sides of
buildings, and free standing signboards. "[222] Citing the same trilogy of cases--
Metromedia, Posadas, and Edge Broadcasting-- the
court defined the test as follows:

There is a logical nexus between the City's
objective and it means it selected for achieving that objective,
and it is not necessary, in satisfying Central Hudson's third
prong, to prove conclusively that the correlation in fact exists,
or that the steps undertaken will solve the problem.... The proper
standard for approval must involve an assessment of the
reasonableness of the legislature's belief that the means it
selected will advance its ends.[223]

The "legislative finding that the majority of
research studies show a definite correlation between alcoholic
beverage advertising and underage drinking, while recognizing that
not all studies reached the same conclusion" satisfied the City's
burden under this test. Like the FDA's proposal, the court made no
attempt to reconcile these cases with Edenfield and
Rubin. The Fourth Circuit reached the identical conclusion,
applying the exact same test, to the companion case involving
cigarette advertising. In Penn Advertising of Baltimore, Inc. v.
Mayor and City Council of Baltimore ,[224] the Court held that a similar prohibition of
outdoor cigarette advertising in publicly visible locations did not
violate the First Amendment. Reasoning that the City could satisfy
its burden "by pointing to legislative facts, studies, history, or
common sense," the court merely quoted the Anheuser-Busch
passage excerpted above, and held the test satisfied based on
evidence gathered during public hearings of the city
council.[225]

The FDA's apparent assurance that its restrictions
will pass constitutional muster is well-placed if the Fourth
Circuit cases indicate the scrutiny to which they will be
subjected. Surely the evidence the FDA presents in support of its
restrictions-- which is discussed more fully infra --
satisfies the meager standard of review defined in
Metromedia and applied by the Fourth Circuit. If the tobacco
lobby is to prevail, it must change the terms of the debate.

The tobacco lobby responds that the "First
Amendment protection of commercial speech is far more substantial
than FDA has recognized" and accuses the FDA of "fall[ing] far
short of acknowledging the Supreme Court's most recent description"
of the commercial speech doctrine in Rubin.[226] "The review actually applied," it argues,
"though somewhat less exacting than strict scrutiny..., is
nonetheless demanding... [and] the government's power to suppress
commercial speech is severely circumscribed."[227] As to the third prong, the tobacco interests
argue that the "FDA's burden affirmatively to demonstrate
the direct advancement of its goals has repeatedly and ever more
forcefully been emphasized by the Supreme Court in recent years.
"[228] Thus, the ANA cites as the applicable test the
Edenfield formulation of the standard as it was described in
Rubin:

[T]he Government carries the burden of showing that
the challenged regulation advances the Government's interest 'in a
direct and material way.' That burden is not satisfied by mere
conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate
them to a material degree.[229]

Such an unequivocal statement in a 1995 Supreme
Court decision would foreclose this dispute in most contexts, but
the Fourth Circuit cases illustrate the continuing unpredictability
of the commercial speech doctrine. While the FDA's restrictions
satisfy the low burden of proof it has selectively defined for
itself, the Rubin reformulation poses a much stiffer test. A
court adhering to Rubin would look much more critically at
the evidence that is summarized in the next section. b.Conflicting
Evidence

A comprehensive review of the extensive literature
concerning the strength of the connection between advertising and
tobacco use by minors is beyond the scope of this paper. Even a
brief summary, however, suffices to illustrate that the jury is
still out on this question.

The FDA argues that tobacco advertising "plays an
important role in a youth's decision to use tobacco. "[230] Tobacco companies use images that appeal
specifically to young people, such as "the rugged and masculine
Marlboro Man" and "the cool Joe Camel," thereby linking "smoking to
success, social acceptance, sophistication and a desirable
lifestyle. "[231] In short, tobacco advertising capitalizes on
typical teen notions of insecurity and invulnerability and
convinces them that smoking will create for them the desired
self-image and the ability to communicate that image to others, all
without the risk of any harm.[232]

In support of its theory, the FDA offers evidence--
gathered primarily from 1994 reports of the Surgeon
General[233] and Institute of Medicine[234] -- "sufficient to conclude that advertising and
labeling play a significant and important contributory role in a
young person's decision to use cigarettes or smokeless tobacco
products. "[235] The FDA claims that the "first and most
compelling piece of evidence supporting restrictions on cigarette
and smokeless tobacco product... advertising and promotion is that
these products are among the most heavily advertised products in
America. "[236] The FDA then describes three categories of
additional evidence: (1) studies demonstrating that young people
"are aware of, respond favorably to, and are influenced by
cigarette advertising,"[237] ; (2) studies of selective advertising campaigns
that "were effective with children, "[238] ; (3) direct quantitative studies "showing
the relationship between advertising and tobacco use and of the
effects of advertising restrictions and bans on consumption.
"[239]

The FDA concludes on the basis of this evidence
that the preponderance of quantitative and qualitative studies of
cigarette advertising suggests: (1) A causal relationship between
advertising and youth smoking behavior, and (2) a positive effect
of stringent advertising measures on smoking rates and on youth
smoking... Finally, examples of specific campaigns directed at
young people support the hypothesis that cigarette advertising and
promotion play an important role in encouraging young people to
start smoking, to sustain their smoking habit, and to increase
consumption.[240]

The tobacco lobby has a three-fold response to the
FDA's evidence. First, it alleges that the FDA misunderstands the
purpose and effect of its advertising. Leo Burnett maintains that
"the purpose of tobacco advertising is to maintain brand loyalty
and encourage brand switching" among adults who choose to smoke,
and argues strenuously that its advertising in no way targets
minors, though it is often geared towards the "young adult smoker.
"[241] The reason why tobacco products are so heavily
advertised is that "the tobacco industry is well-recognized as one
of the most fiercely competitive market categories. "[242]

Second, the tobacco lobby maintains that the FDA's
data simply does not establish a causal connection between
tobacco advertising and a minor's decision to begin
smoking.[243] It argues that the very language the FDA uses in
describing its conclusions--"hypothesis," "Important contributory
role," "evidence suggests"-- is an acknowledgment that no causal
link has been proven. Further, the industry notes that even the FDA
concedes that "'[m]any behavioral and personal characteristics
influence an adolescent's decision to use cigarettes or smokeless
tobacco products'" and that advertising and promotional activities
"at most, merely 'contribute to the multiple and convergent
psychological influences that lead children and youths to begin
using these products.' "[244] As Dr. J.J. Boddewyn argues, the "studies
favorably cited [by the FDA] are really about associations
between cigarette advertising and smoking behavior rather than
about causality. "[245] Noting the similar conclusions of official
investigations conducted in this country and around the
world,[246] Dr. Boddewyn contends that the evidence simply
does not demonstrate a causal connection between tobacco
advertising the prevalence of youth smoking. Particularly damning
to the FDA is the conclusion of a 1989 report compiled by
then-Surgeon General Koop:

[t]here is no scientifically rigorous study
available to the public, that provides a definitive answer to the
basic question of whether advertising and promotion increase the
level of tobacco consumption... The extent of the influence of
advertising and promotion is unknown and possibly
unknowable.[247]

Even more persuasive are the results of the Federal
Trade Commission's comprehensive three-year investigation of the
"Joe Camel" campaign, which concluded "[a]fter considering every
possible avenue to a lawsuit to ban the ads" that "although it may
seem intuitive to some that the Joe Camel advertising campaign
would lead more children to smoke or lead children to smoke more,
the evidence to support that intuition is not there. "[248] The tobacco industry argues that the FTC's
conclusion, reached "only after

'spend[ing] a great deal of time and effort
reviewing the difficult factual and legal questions raised by t[he]
case, including a comprehensive review of the relevant studies and
statistics,'"[249] should carry a great deal of weight.

Finally, the tobacco lobby challenges the FDA's
conclusion that advertising restrictions would reduce to a material
degree the incidence of tobacco use by minors.[250] The industry points to the experience of
countries where cigarette advertising has been either severely
restricted or totally banned. In Finland and Norway, for example,
where ads have been banned since 1978 and 1975 respectively,
smoking rates have remained largely unchanged from the pre-ban
period.[251] In Australia and Sweden, countries with more
recent bans, smoking rates have actually risen in the past few
years.[252] c.Does Rubin mean what it says?

The evidence presented by the tobacco lobby thus
casts severe doubt on the constitutionality of the proposal. The
FDA can argue that its proposed regulations are supported by far
more evidence than the restrictions overturned in Edenfiekl[253] and Rubin.[254] Indeed, the FDA's supporting data may most
resemble the evidentiary record in Florida Bar, where the
Court held a 106 page summary of a 2 year study, containing
statistical data and an anecdotal record "noteworthy for its
breadth and detail" sufficient to meet the government's burden
under Central Hudson's third-prong.[255] Yet the tobacco lobby can distinguish Florida
Bar on the critical grounds that the supporting data at issue
there was "at no time refuted," which is hardly true in the present
case.[256] The industry's primary argument, however, should
be that if the Court's language in Rubin means what it
says-- "a governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites are
real and that its restriction will in fact alleviate them to a
material degree"-- the FDA's proposal does not satisfy
Central Hudson's third prong.

This argument is persuasive. The FDA convincingly
establishes some link-- be it a "correlation or causation" or
"association"-- between tobacco advertising and tobacco use by
minors. The argument that such advertising causes kids to
begin using tobacco products is severely undercut, however, by (1)
the conclusions of the Surgeon General, the FTC, and several
official investigations conducted abroad and, to a lesser extent,
(2) by the language the FDA uses to describe the very studies it
relies on. Further, the experiences of other countries that have
enacted similar restrictions or all-out bans sharply contradict
FDA's argument that its proposed restrictions will effectively
reduce tobacco use to a material degree.

Thus, the FDA's best chance is to hope that the
Fourth Circuit is right in believing that the Court did not mean
what it said in Rubin. The FDA can cling to its deferential
strain of case law in the hopes that no court would really require
it to prove what, at this moment, cannot be proven. Based on the
history of the commercial speech doctrine, the FDA cannot be blamed
for trying.

4.Is the FDA proposal sufficiently narrowly
tailored?

Once again, inconsistent Supreme Court precedent
creates uncertainty as to the appropriate test under this
Central Hudson prong. FDA argues for the Fox
restatement of the rule:

What our decisions require is a "'fit" between the
legislature's ends and the means chosen to accomplish those
ends,'...- a fit that is not necessarily perfect, but reasonable;
that represents not necessarily the single best disposition but one
whose scope is 'in proportion to the interest served,'.., that
employs not necessarily the least restrictive means but... a means
narrowly tailored to achieve the desired objective. Within those
bounds we leave it to the governmental decisionmakers to judge what
manner of regulation may best be employed.[257]

"As with the third prong," the FDA argues, "the
Supreme Court has expressed a willingness to defer this
determination to the regulating body. "[258] Here again, the Fourth Circuit cases demonstrate
the continuing vitality of the deferential strain of the case law.
The circuit court applied the following standard to the
restrictions on alcohol and tobacco outdoor advertising at issue in
Penn Advertising and Anheuser-Busch:

If there were some less restrictive means of
screening outdoor advertising from minors, or of reducing the area
of billboard regulation in a manner that would have it focus more
effectively on reaching minors, the City would have to consider
those alternatives. But it is not an acceptable response to the
approach taken by the City of limiting advertising exposure to say
that the City must abandon altogether an approach that directly
advances its goal. In the face of a problem as significant as that
which the City seeks to address, the City must be given some
reasonable latitude.[259]

Needless to say, the Court held that the City acted
within its reasonable latitude to do so. The FDA should have little
difficulty satisfying the Fox formulation of
Central

Hudson's fourth prong, though not on the
grounds actually argued in the proposal.[260] The

FDA's fourth-prong analysis relies heavily on the
discredited "greater power includes the lesser reasoning" of
Posadas.[261] The agency argues, for example, that "because it
could have banned the sale or distribution of the product, or
banned certain of the marketing and promotional practices of the
tobacco industry, the lesser steps of regulating... advertising..,
are reasonable. "[262] As discussed supra part III.B.2.b., this
reasoning should not be sufficient to satisfy the government's
burden on this point.

Nonetheless, the fit between the FDA's chosen means
and its asserted ends should satisfy the deferential Fox
standard. The FDA's proposal represents a deliberate effort to
prevent allegedly harmful advertising from reaching children, while
attempting not to suppress advertising that is either harmless or
is viewed primarily by adults.[263] The "tombstone" ad regulation, though possibly
imperfect by the FDA's own admission,[264] would reduce the attraction and appeal of
tobacco advertising for minors while still providing "useful
information to consumers legally able to purchase these products.
"[265] The proposed ban on outdoor advertising within
1000 feet of schools or playgrounds singles out those "places where
children and adolescents spend a great deal of time," and is merely
an expansion of the 500 foot limit that is already part of the
tobacco industry's voluntary "Cigarette Advertising and Promotion
Code. "[266] The complete prohibition of all promotional
non-tobacco items and brand sponsorship of events is clearly the
least tailored of the proposed advertising restrictions. Because
the FDA made no effort to distinguish those items and events that
appeal to minors from those that do not, this restriction may be
vulnerable to attack even under the Fox standard. Still,
Public Citizen argues that FDA 's line-drawing, at least as to the
event sponsorship provision, is "eminently reasonable... [in that
it] allow[s] tobacco companies to continue to sponsor events and
therefore reap the corporate good will that flows from sponsorship,
but compels the companies to jettison the hard-sell message that
now typifies these events. "[267] In the end, however, a court that chooses to
apply the more deferential standard has probably already decided to
uphold the restriction at issue, unless it is "substantially
excessive" or disregards "'far less restrictive and more precise
means.'"[268] A court would almost certainly refuse to so hold
as to any of the proposed restrictions.

The tobacco lobby contends, however, that "FDA is
seriously confused over its fourth prong responsibilities,
"[269] and argues for the more speech-protective
application of Central Hudson's final prong. The industry
maintains that a government restriction of commercial speech must
be "narrowly tailored" and its costs "carefully calculated" to
accomplish its asserted purpose.[270] Citing Discovety Network and
Rubin, the industry asserts that "[r]egulations which
disregard far less restrictive means and more precise means of
achieving the government's asserted objectives are not narrowly
tailored."[271] The tobacco lobby alleges that FDA fails to
satisfy its fourth prong burdens because (1) alternative approaches
would accomplish the FDA' s asserted interests far more effectively
without burdening any speech, and (2) its regulations sweep far too
broadly, restricting expression to adults in the name of protecting
children.

The tobacco lobby argues vigorously that two
"obvious" alternatives would entail no restriction of speech
whatsoever. First, the federal government should simply intensify
law enforcement efforts, either by enacting federal laws
prohibiting the sale and distribution of tobacco products to minors
or merely supporting state efforts that do the same. "Through
better enforcement of current laws and stiffer penalties for
offenders, child access laws can have a significant direct impact
without burdening speech at all."[272] FDA itself is fully aware that "[y]outh
access restrictions have been found to be effective in reducing
illegal sales and... that efforts to reduce access have led to a
decrease in tobacco use by young people. "[273] In fact, Subpart B of the FDA proposal includes
measures intended to toughen law enforcement efforts across the
country.

A second obvious alternative is for FDA to step up
its own education efforts-- to use "counter-speech" to combat the
tobacco industry's speech. Here again FDA acknowledges the efficacy
of such public education campaigns by proposing to require the
industry to establish and fund one. While this proposal is almost
certainty unconstitutional, as demonstrated supra part
IV.A., nothing prevents the government from designing and funding
one of its own. In fact, the ANA notes that "Congress has already
directed the Secretary of Health and Human Services.., to
'establish and carry out a program to inform the public of any
danger to human health' presented by the use of cigarettes or
smokeless tobacco products. "[274]

The tobacco lobby argues further that the proposed
restrictions are not sufficiently tailored to their purported goal
of protecting minors. The industry charges FDA with violating the
principle enunciated by the Supreme Court in Butler v.
Michigan precluding governments from "reduc[ing] the adult
population... to reading only what is fit for children. "[275] In a methodical rule-by-rule analysis, the
industry demonstrates how each proposed regulation "would
effectively bar cigarette advertising directed at adults.
"[276]

"Tombstone" Ads. First, this proposed restriction
"would amount to a total ban on tobacco advertising" in the
affected publications because the "limited value of this
advertising means it would make no sense to place" the ads at
all.[277] Second, as Robert Bork argues, "the FDA provides
no basis for having chosen the 85 percent figure. "[278] A rule that restricts advertising in a newspaper
whose readership includes only 16 percent minors, or a national
news magazine read by 50 million people, two million one of whom
happen to be under the age of eighteen, is clearly anything but
narrowly tailored. Moreover, those publications that approach the
"two million or fifteen percent" thresholds, but do not always
cross them, would present constant difficulties for publishers and
manufacturers alike, who often enter into multi-issue agreements
and rely on the ability to plan ahead.[279] These implications "raise the suspicion that
[the FDA] is using minors as a pretext to try to ban cigarette
advertising generally. "[280]

Outdoor Advertising. The tobacco industry argues
that the regulation prohibiting all outdoor advertising within 1000
feet of any playground or school is equally and unnecessarily
draconian. According to the industry's comments to the FDA, such
restrictions would ban outdoor advertising in 94.8 percent of
Manhattan (88.4 percent if the regulation applied to schools only),
90 percent of Boston (82 percent if applied to schools only), and
87.7 percent of Seattle ("under a broad definition of
'playground'").[281]

Promotional Items and Sponsorship. Robert Bork
argues convincingly that the broad scope of these restrictions
violate Central Hudson's fourth prong.

Even if there was compelling evidence that
sponsorship of certain events or of certain merchandise increased
underage smoking, the FDA has not tailored its ban to those events
or to those items that would have any particular appeal to
children. Instead, brand-name tobacco sponsorship identification is
banned at all events and for all merchandise, regardless of their
appeal to children.

The scope of events regulated by FDA could not be
broader. They include any athletic, musical, artistic or other
social or cultural event.' Such a broad ban suggests that children
may be a pretext for bans on brand name sponsorship identification
for these events across the board rather than a justification for a
regulation narrowly designed to protect children.[282]

Prohibiting brand sponsorship in auto racing, for
example, where the FDA's own stats suggest that children constitute
a mere seven percent of the viewing audience,[283] "is to burn the house to roast the pig.
"[284]

Thus, under the more speech-protective
interpretation of Central Hudson's fourth prong, the FDA's
failure to tailor its restrictions more narrowly, combined with the
existence of two alternatives that burden no speech whatsoever, may
render the proposal unconstitutional. One can argue that the FDA
calculated the costs of its restrictions as inadequately as the
government did in Discovery Network, where the Court struck
down a local ordinance banning all commercial newsracks on public
property without regard to

"size, shape, appearance, or number" in the
interest of preventing "visual blight. "[285] Clearly the FDA could have proposed less
burdensome restrictions by distinguishing between events and items
that appeal to children and those that do not; by taking account
not just of the distance between outdoor advertising and
playgrounds but also of the direction from which the advertising
can actually be seen; by raising the 15 percent threshold and
eliminating it altogether for publications with smaller
circulation. Further, the mere availability of two non-speech
burdening alternatives could in and of itself render the plan
unconstitutional, depending on how seriously one construes the
Court's dictum in Rubin that "the availability of several
alternatives indicates that [the challenged regulation] is more
extensive than necessary. "[286]

The FDA can respond that trying to protect children
by restricting advertising intended for both children and adults
will necessarily involve some imprecise line-drawing. No one
approach can be perfect and, no matter what the FDA proposes,
"inevitably the industry will quibble over the manner in which the
FDA drew the line. "[287] Because this argument invariably leads to asking
for some degree of latitude, the FDA must argue that even the more
restrictive approach does not foreclose giving it any.

5. The Limits of the Central Hudson
Test

The application of the Central Hudson four
prong test to the FDA proposal is profoundly unsatisfying. First,
the unpredictability of the commercial speech doctrine renders a
clear legal analysis virtually impossible. This frustrates students
of the First Amendment, but must downright infuriate legislators,
manufacturers and advertisers who are left in the dark as to what
regulation is constitutionally permissible and what is not. A
second source of the discontent engendered by the Central
Hudson analysis is the theoretical uncertainty that underlies
it. Contrasting rhetoric in the case law-- compare, for example,
"commercial speech occupies a subordinate position in the scale of
First Amendment values" with "the free flow of commercial
information is indispensable to the proper allocation of resources
in a free enterprise system"-- leaves one with little sense as to
what the First Amendment should permit. If the First
Amendment protects the marketplace of ideas, why should commercial
ideas be more easily suppressed than other kinds? Should only
certain kinds of commercial ideas receive less protection than
others?

The next section explores the theoretical arguments
for and against the FDA's proposed restrictions of tobacco
advertising. In the face of doctrinal uncertainty, an analysis of
the First Amendment concerns at stake sheds light on the
appropriate constitutional status of these rules.

C.The FDA Proposal and First Amendment Theory

As argued supra part III.B.2.b., the
commercial/non-commercial speech distinction is largely
unprincipled. The asserted "commonsense differences" that explain
why commercial speech receives a lesser degree of protection
collapse under analysis. The "leveling" and "greater power affects
the lesser" justifications, though never fully articulated by the
Court, seem equally without basis in First Amendment theory. While
the FDA can make two additional arguments that its proposed
restrictions are consistent with First Amendment values, neither is
persuasive. The First Amendment mandates that the government not
pick and choose which expression gets to compete in the marketplace
of ideas without a sufficient showing that the expression actually
causes harm. The government must not be permitted to restrict
commercial speech more easily simply because it deems the manner in
which the speech proposes a transaction insufficiently
"informative" or the transaction itself "harmful. "[288]

Let us assume for present purposes what is an
accurate description of reality anyway, namely, that tobacco
products pose undeniably grave risks to our health and well-being,
and that, though the evidence suggests some correlation between
advertising and the decision to begin using such products, no
causal link has been proven.

1.The FDA proposal restricts images, not
information.

The proposed restrictions of tobacco advertising
focus on image rather than information. Requiring "tombstone" ads
in those publications not primarily read by adults, for example,
prohibits R.J. Reynolds from using the Joe Camel character
allegedly so popular with children, but still permits it to
advertise the tar and nicotine content of its Camel cigarettes.
Similarly, banning brand sponsorship in auto racing, to take
another example, has nothing to do with suppressing information
that might help consumers make rational decisions about how
to spend their money. Indeed, the very idea of such a ban is to
prohibit the emotional appeal of fast cars and rugged race
car drivers. As a Phillip Morris executive explained,

'We perceive Formula One and Indy Car racing as
adding, if you will, a modern-day dimension to the Marlboro Man.
The image of Marlboro is very rugged, individual, heroic. And so is
this style of auto racing. From an image standpoint, the fit is
good.'[289]

The Court, however, justifies its protection of
commercial expression primarily by reference to its informational
value, the strong individual and societal interests in "free flow
of commercial information. "[290] The seminal Virginia Board case, for
example, concerned drug price advertising that the Court described
as communicating the simple idea of "I will sell you the X
prescription drug at the Y price." Subsequent cases have largely
concerned the suppression of expression that communicates some
useful information, such as beer alcohol content labeling,[291] attorney solicitation,[292] and contraceptive pamphlets.[293] As Professors Collins and Skover note, the
'information function is central to the Court's approval of
commercial expression as a form of protected speech. Indeed, of the
major commercial speech cases in which governmental regulation has
been invalidated, nearly all 'involved restrictions on purely or
predominantly informational speech, such as the bans on price
advertising.' By comparison, governmental regulations were
sustained in cases not involving predominantly 'informational
advertising. '[294]

Thus, the FDA can argue that its restrictions have
little to do with why the First Amendment protects commercial
expression in the first place. Eliminating Joe Camel and the
Marlboro Man from the marketplace of ideas will have no detrimental
impact on consumers ability to make informed economic decisions. In
fact, such restrictions are designed precisely to encourage minors
to make rational decisions about whether or not to begin smoking--
and the FDA surely believes that is what the industry fears
most.

Professor Collins and Skover agree with the FDA.
They characterize much of today's commercial speech as having "less
to do with products than lifestyles, less to do with facts than
image, and less to do with reason than romance. "[295] Collins and Skover quote advertising executives
who describe their trade as concerning not "'products but a person
and his life,'" concentrating " 'on the perceptions of the
prospect.... [and n]ot the reality of the product.' "[296]

Insofar as advertising succeeds, the identity of
the consumer is continually reshaped by a relationship to goods and
services... 'We differentiate ourselves from other people by what
we buy... In this process we become identified with the product
that differentiates us.'... Advertising displays the kinds of cars
we should own, the kinds of clothes we should wear, the kinds of
alcohol and soda we should drink, the kinds or perfumes and
colognes we should use-- in short, the kinds of people we should
be.[297]

Collins and Skover argue that such "speech in the
service of selling" is not entitled to the same degree of First
Amendment protection as what they call the (purely information
based) "classified model" of advertising. Not only is such speech
valueless, they contend, but it actually debases the traditional
First Amendment values of "rational decisionmaking and
self-realization" by transforming the "marketplace of ideas into a
marketplace of commercial symbols. "[298]

Though Collins and Skover rightly argue that the
commercial speech doctrine does not account for the reality of
modern advertising, this is no reason to abandon First Amendment
protection of such advertising altogether. Image-based advertising
does not express the type of idea described in Virginia
Board, but it expresses ideas nonetheless, indeed the very
ideas described by Collins and Skover in their critique. The notion
that smoking will make you "cool" or "sexy," however frivolous and
mundane in the FDA's eyes, should be subjected to the rigors of the
marketplace of ideas like any other. That the government disagrees
with or disapproves of this idea-- to the extent that it is
actually able to identify and articulate "the idea" that a
particular image or slogan communicates- is also no justification
at all to suppress it. In fact, it is precisely the judgment that
the First Amendment prohibits governments from acting on.

The Court's holding in R.A. V. v. St. Paul[299] is instructive on this point. In R.A. V.,
the Court struck down an ordinance prohibiting otherwise
unprotected hate speech on the grounds that the law suppressed hate
speech that espoused a particular point of view. The case has come
to stand for the proposition that "even when the government is
regulating a class of speech that normally receives little or no
First Amendment protection, the First Amendment's strict neutrality
standards, which render presumptively unconstitutional
discrimination based on content or viewpoint, still apply with full
force."[300]

Just because the First Amendment requires the
government not to restrict express ion that seeks to influence
people's views of what is cool does not mean that it may not try to
do some influencing of its own.[301] The neutrality principle only extends as far as
"make no law abridging." Nothing in the First Amendment prohibits
government-sponsored counterspeech, and, of course, governments
endorse and advocate official viewpoints on public health issues,
tobacco use included, all the time. In the Conclusion, I argue for
the approach that the First Amendment always counsels-- more
speech.

2.Smoking is a harmful activity.

The FDA believes that tobacco advertising causes
kids to begin smoking. The FDA argues that studies that reveal a
strong association but fail to prove causation should nonetheless
provide sufficient support for its proposed restrictions because
the FDA should have broad latitude to regulate advertising for
"socially harmful activities." This argument is invalid as a
doctrinal matter after Rubin, as we have seen, but does it
carry more weight as a theoretical justification?

This argument begins with the premise that the
First Amendment is not an absolute. The government may restrict
speech that causes sufficiently serious harm, as do libel and
fighting words, so long as it can satisfy the high burden of
proving that the suppressed speech does in fact cause the harm
complained of. Speech that promotes illegality may be restricted,
for example, only if it "is directed to inciting or producing
imminent lawless action and... is likely to incite or produce such
action."[302] Thus, the constitutionality of the FDA's
proposal would be entirely justifiable as a theoretical matter if
the evidence as to causation were unequivocal. The FDA's argument
here is that, because kids should not be smoking in the first
place, the FDA should be held to a lower burden of proof as to
causation and the somewhat ambiguous evidence should be
sufficient.

The two dangers of this "socially harmful" activity
argument are its circularity and its serious potential for abuse.
Allowing governments greater latitude to regulate speech that
concerns harmful activities simply encourages would-be regulators
to classify more activities as harmful. Thus, deferring to
restrictions of tobacco advertising because smoking is bad for you
opens the door for similar regulations of advertising for alcohol,
coffee, beef, and countless other products that are not "good" for
us.[303] This rationale would most endanger unpopular
industries that opportunistic governments might target for
political gain-- indeed, some argue that this is the precise
motivation of the regulations at issue here.[304] But those inclined to support the tobacco
restrictions simply because they loathe the tobacco industry must
consider the implications of this "First Amendment be damned"
approach. Many supporters of this proposal would be most unhappy to
find, for example, the same rationale adopted by conservative
governments to restrict contraceptive advertising on the grounds
that it "causes" people to engage in premarital sex.[305]

Thus, the argument that the degree of First
Amendment protection of speech that proposes a commercial
transaction should correspond to the "value" of that transaction to
society undermines fundamental free speech principles. Those
sympathetic to the FDA's goals must not allow their opinions of the
tobacco industry or smoking generally to cloud their judgment.

V.CONCLUSION

A thorough analysis of the First Amendment issues
raised by the FDA's proposed advertising restrictions reveals
serious constitutional defects. The public education campaign is a
clearly impermissible attempt to compel fully protected speech. And
though inconsistent and unpredictable case law precludes a clear
assessment of the constitutionality of the remaining restrictions,
a coherent theory of the First Amendment requires these rules to be
struck down as well.

Assuming the FDA does not lack the jurisdiction, it
is not powerless against the "positive imagery that makes [tobacco
products] so appealing" to children and adolescents.[306] As the saying goes, the best defense is a good
offense. If it is image, emotion, and appeals to the young's sense
of "live for the moment" that work with today's youth, than the FDA
must use these tools to its advantage. The FDA's public education
campaign should stress not grim facts and figures, however sobering
these might be, but images depicting smoking and cigarette use as
uncool. How about a camel with a hacking cough? A race car that
sputters after just a few laps? A young boy unable to get a prom
date because he smokes or uses smokeless tobacco?

The First Amendment mandates that the government
have extremely limited power to suppress speech because people can
best decide for themselves what is a good idea and what is not. If
the FDA is so firmly convinced that kids should not smoke, the
burden is on it, and on all of us who agree, to figure out ways to
persuade others that we are right.

[*] This tide derives from a famous exchange between
Chief Justice Rehuquist and Justice Brennan in their respective
opinions in Posadas de Puerto Rico Associates v. Tourism Company of
Puerto Rico, 478 U.S. 328 (1986). Writing for the majority, Chief
Justice Rehaquist argued that lilt would... surely be a strange
constitutional doctrine which would concede to the legislature the
authority to totally ban [casino gambling], but deny to the
legislature the authority to forbid the stimulation of demand for
[such gambling] through advertising." Id. at 346. Justice
Brennan's replied in his stinging dissent that "the constitutional
doctrine' which bans Puerto Rico from banning advertisements
concerning lawful casino gambling is not so strange a restraint--
it is called the First Amendment." Id. at 355 n. 4
(Brennan, J., dissenting). The vitality of Rehnquist's "greater
power includes the lesser" reasoning is discussed infra part
III.B.2.b.

[2] FDA Proposal, 60 Fed. Reg. 41,314 (proposed Aug. 11,
1995)(to be codified at 21 C.F.R. Pt. 897). The FDA, adopting an
objective of the 1990 Department of Health and Human Services
"Healthy People 2000" report, intends to reduce by roughly half the
number of young Americans who smoke within seven years of the date
of publication of the final rule. Id.

[4] Six of the nation's largest cigarette and smokeless
tobacco product manufacturers sought declaratory and injunctive
relief against the FDA and its commissioner, David A. Kessler,
M.D., in federal court in North Carolina. One company, the Liggett
Group, has since announced its withdrawal from the litigation as
part of a settlement of an unrelated class action suit. See
Bamaby J. Feder, "A United Front By Big Tobacco Starts to Crack,"
N.Y. TIMEs, March i4~ 1996, at Al

[7] Commercial speech is one of the so-called "low-value"
categories of speech not protected to the full extent of the First
Amendment. See Jeffrey M. Shaman, "The Theory of Low-Value
Speech," 48 SMU L. REv. 297, 317 (1995).

[9] For the sake of uniformity and simplicity, I will
refer to the parties that oppose the FDA's proposed regulations
collectively as "the tobacco lobby," although some groups may have
no economic stake in the health of the tobacco industry and have
other reasons for ~ the

[10] DEPARTMENT OF HEALTh AND HuMAN SERvICES,
"Preventing Tobacco Use Among Young People: A Report of the Surgeon
General," Atlanta, Georgia: DHIIS, PHS, CDC, NCCDPHP, OSH, 1994, at
5, reprinted in FDA Proposal, 60 Fed. Reg. at 41,314
(hereinafter cited as "1994 SGR"). According to a 1994 Institute of
Medicine Report, approximately 3000 young people per day become
regular smokers. INSTITUTE OF MEDICINE, "Growing Up Tobacco Free,"
1994, at 8, reprinted in FDA Proposal at 60 Fed. Reg. at
41,314 (hereinafter "JOM"). A 1990 study estimated that adolescents
consume 947 million packs of cigarettes and 26 million containers
of smokeless tobacco and account for annual tobacco sales of $1.26
billion. DiFranza, J.R. and J.B. Tye, "Who Profits From Tobacco
Sales to Children?" JOURNAL OF ThE AMERICAN MEDICAL ASsocIATION,
vol. 263, No. 20, 1990, at 2784-2787, reprinted in FDA
Proposal. 60 Fed. Reg. at 41.317.

[11] According to the Surgeon General's Report,
"eighty-two percent of adults who ever smoked had their first
cigarette before age 18." 1994 SGR, supra note 10, at 65,
reprinted in FDA Proposal, 60 Fed. Reg. at41314;

[12] E. Taioli and E.L. Wynder, "Effect of the Age at
Which Smoking Begins on Frequency of Smoking in Adulthood," THE NEW
ENGLAND JOURNAL OF MEDICINE, vol. 325, No. 13, 1991, at
968-969, reprinted in FDA Proposal, 60 Fed. Reg. at 41,314;
L.G. Escobedo, et al., "Sports Participation, Age of Smoking
Initiation, and the Risk of Smoking Among U.S. High School
Students," JOURNAL OF THE AMEPJCAN MEDICAL ASSOCIATION, vol. 269,
No. 11, 1993, at 1391-1395, reprinted in FDA Proposal, 60
Fed. Reg. at41,314.

[14] J.M. McGinnis and W.H. Foege, "Actual Causes of
Death in the United States," JOURNAL OF THE AMERICAN MEDICAL
ASSOCIATION, vol. 270, No. 18. 1993, at 2207-2212, reprinted
in FDA Proposal, 60 Fed. Reg. at 41,318. As Dr. David Kessler,
Commissioner of the FDA, recently told an audience at Georgetown
University, "smoking kills more people each year in the United
States than AIDS, highway accidents, alcohol, homicides, illegal
drugs, suicide, and fires combined." FEDERAL NEws SERVICE, August
16, 1995.

[25] The FDA credited numerous resources, including the
World Health Organization, the Office of the Surgeon General, the
Centers for Disease Control and Prevention, the National Cancer
Institute, and the Institute of Medicine. Id. at 41,315.

[33] The Cigarette Advertising and Promotion Code (CAPC)
includes guidelines intended to ensure that advertising be placed
in adult-oriented media and appeal only to adults, and that minors
not participate in promotional offers and contests. Both the CAPC
and the Outdoor Advertising Association of America's Code of
Advertising Practices call for a distance of 500 feet from
"established" schools and playgrounds for the placement of tobacco
billboards. See Leo Burnett, Inc., "Comments from the Leo
Burnett Company, Inc. To the Food and Drug Administration on
Regulations Restricting the Sale and Distribution of Cigarettes and
Smokeless Tobacco Products to Protect Children and Adolescents,"
Docket No. 95N-0253, December 1995, 4 (hereinafter "Leo
Burnett").

[36] Kozinski and Banner, supra note 1, at 757,
claim that Valentine was "one of the easiest cases the Court ever
decided." The Court decided the case four days after oral argument
and announced its opinion nine days later-- a time frame "not
unheard of in those days, but "about as fast as any case was ever
decided." Id. The case was not one "any of the Justices
found necessary to dwell upon." Id.

[61]Id. at 66. Speech is not commercial
merely because money is spent to project it; because it is in a
form sold for profit; because it solicits money; or, because it
regards a commercial subject. Alex Kozinshi and Stuart Banner,
"Who's Afraid of Commercial Speech?", 76 VA. L. REv. 627, 638
(1990)). See also Virginia Board, 425 U.S. at 761;
Cincinnati v. Discovery Network, 113 S.Ct. 1505, 1512 (1993).

[63]See, e.g.. Discovery Network, 113 S.Ct. at
1512 ("'[TIhe speech whose content deprives it of protection cannot
simply be speech on a commercial subject. No one would contend that
lal pharmacist may be prevented from being heard on the subject of
whether, in general, pharmaceutical prices should be regulated, or
their advertisement forbidden.' ")(quoting Virginia Board, 425 U.S.
at 761-62 (1976)).

[68] John H. Garvey and Frederick Schauer, eds., THE
FIRST AMENDMENT: A READER 58 (1992). See John Milton,
AREOPAGITICA (1644)("let [Truth] and Falsehood grapple; who ever
knew Truth put to the worse, in a free and open encounter?")

[69] This now-familiar phrase was coined by Justice
Oliver Wendell Holmes in his famous dissenting opinion in Abrams v.
United States, 250 U.S. 616. 630 (1919)("the best test of truth is
the power of the thought to get itself accepted in the competition
of the market").

[72] John Stuart Mill, ON LtBERTY (18 59)("If all
mankind minus one were of one opinion, and only one person were of
the contrary opinion, mankind would be no more justified in
silencing that one person, than he, if he had the power, would be
justified in silencing mankind.")

[77] Bork, supra note 67, at 20 ("Constitutional
protection should be accorded only to speech that is explicitly
political. There is no basis for judicial intervention to protect
any other form of expression. ").

[88] 115 S.Ct. at 1589 (quoting Virginia Board). The
Court has also contended that democratic free speech theory
justifies according commercial speech a degree of First Amendment
protection, albeit indirectly. As the Court stated in Virginia
Board,
if Ithe free flow on commercial information] is indispensable to
the proper allocation of resources in a free enterprise system, it
is also indispensable to the formation of intelligent opinions as
to how that system ought to be regulated or altered. Therefore,
even if the First Amendment were thought to be primarily an
instrument to enlighten public decisionmaking in a democracy, we
could not say that the free flow of information does not serve that
goal.
425 U.S. at 765 (footnote omitted). This justification was clearly
secondary to the "marketplace" reasoning, however, and has not been
relied on since.

[97] Florida Bar, 115 S.Ct. at 2375 (quoting Ohralik v.
Ohio State Bar Assn., 436 U.S. 447, 456 (1978)). See
also Board of Trustees of State University of New York v. Fox,
492 U.S. 469, 480 (l989)(quoting same).

[106] Even the mere phrase "the greater power includes
the lesser" is a dangerous form of legal reasoning because it
assumes the very judgment in question. When speaking about a
particular good or service, the power to ban it is certainly
greater than the power to ban advertising for it. In a more general
sense, however, state economic and regulatory authority is simply a
different power-- not greater and perhaps even lesser-- than its
very limited power to suppress speech.

[110] See, e.g., Kenneth L. Karst, "Equality as a
Central Principle in the First Amendment," 43 U. Cm. L. REv. 20
(1975); Thomas Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION
326 (1970). Such critics sometimes cite the Supreme Court's words
back at it, for example:
above all else, the First Amendment means that government has no
power to restrict expression because of its message, its ideas, its
subject matter, or its content... To permit the continued building
of our politics and culture, and to assure self-fulfillment for
each individual, our people are guaranteed the right to express any
thought, free from government censorship. The essence of the
forbidden censorship is content control.
Police Dep't of City of Chicago v. Mosley, 408 U.S. 92,
95-96 (1951).

[112] Kozinski and Banner, supra note 61, at
652. See also Aaron Director, "The Parity of the Economic
Market Place," 7 J.L. & ECON. 1, 6 (1964)("[T]he bulk of
mankind will for the foreseeable future have to devote a
considerable fraction of their active lives to economic activity.
For these people freedom of choice as owners of resources in
choosing within available and continually changing opportunities,
areas of employment, investment, and consumption is fully as
important as freedom of discussion and participation in
government.")

[116]ld. at 566. In Florida Bar v. Went For It,
Inc., the Court reformulated the Central Hudson test as a
three-pronged inquiry with a threshold requirement that the
regulated speech concern lawful activity and not be misleading. 115
S.Ct. 2371. 2375 (1995). For the purposes of this paper, I
will continue to refer to the four-part Central Hudson test, in
keeping with the vast majority of the cases and law review
literature to date.

[117]See, e.g., Valerie D. Wood, Comment, "The
Precarious Position of Commercial Speech: Rubin v. Coors Brewing,"
19 HARV. J. L. & PUB. POL'Y 612-13 (1996)("The Central Hudson
test has proven to be too manipulable to provide any determinate
boundaries around when commercial speech can be regulated. Until
the Court sheds more light on the meanings of the prongs of the
test, the protection of commercial speech will be in doubt in each
new case. "): P. Cameron DeVore, "The Two Faces of Commercial
Speech Under the First Amendment," 12-SPG COMM. LAW 1
(1994)(arguing that the 1993 Term "once again demonstrated (the
Court's] unpredictable approach to First Amendment protection of
commercial speech").

[119] 60 Fed. Reg. at 41,354. Public Citizen argues
that such regulations would serve the additional government
interests of "avoiding the enormous cost of providing health care
to future generations of smokers" and "furthering respect for the
law." Public Citizen, supra note 118, at 108-109. The FDA
would have to make these arguments on its own for a Court to
consider them. See Edenfield v. Fane, 113 S.Ct. 1792. 1798
(1993)("Unlike rational basis review, the Central Hudson standard
does not permit us to supplant the precise interests put forward by
the State with other suppositions. ").

[121]See Posadas, 478 U.S. at 341 (holding that
the legislature's interest "in the health, safety, and welfare of
its citizens constitutes a 'substantial' governmental interest");
accord Fox, 492 U.S. at 475; Rubin, 115 S.Ct. at 1591.

[137]Id. at 1800-1801. In striking down the
Florida statute, the Court distinguished Obralik v. Ohio State Bar
Ass'n, 436 U.S. 447 (1978), in which the Court upheld Ohio's ban on
in-person solicitation by lawyers. 113 5. Ct. at 1802-1804. The
Court based the distinction on alleged differences between the
professions. Id.

[138] The Court's decision in Ibanez v. Florida
Department of Business and Professional Regulation, Board of
Accountancy, 114 5. Ct. 2084 (1994)(holding that Florida Board of
Accountancy's reprimand of petitioner violated her First Amendment
rights), cited the Edenfield formulation but rested primarily on
the determination that the interests asserted by the state were not
substantial.

[144] The government argued that "lilt is assuredly a
matter of 'common sense'.. .that a restriction on the advertising
of a product characteristic will decrease the extent to which
consumers select a product on the basis of that trait." ld.
at 1592 (cite to Brief for Petitioner omitted).

[148] Until last term, the FDA could have argued that
regulations of commercial speech concerning "socially harmful"
activities are entitled to even more deference than commercial
speech restrictions generally. The argument rested on the Court's
considerable deference to the legislative judgments at issue in
Edge Broadcasting (lottery advertising) and Posadas (casino
gambling advertising). In Rubin, however, the Court explicitly laid
to rest the notion of a Central Hudson exception for speech
concerning such activities. 115 S.Ct. at 1589 n. 2. Clearly a
"socially harmful activities" exception would have proved extremely
useful to the FDA in arguing for the constitutionality of the
proposed restrictions at issue here.

[150] As a doctrinal sidenote, the overbreadth doctrine
has no application in the context of commercial speech. Bates v.
State Bar of Arizona, 433 U.S. 350 (1977). In other words,
unprotected (i.e. false or misleading) commercial speech does not
receive constitutional protection even if efforts to regulate it
are overbroad.

[178]See Public Citizen, supra note 118,
at 92 ("The courts have made clear that the 'commercial speech'
doctrine applies to speech well beyond that which merely proposes a
sale. Rather, as the Court emphasized in Bolger, any speech that
links a product with a selling message constitutes commercial
speech... Thus, for instance, placing a Marlboro logo on a T-shirt
is an expressive act within commercial speech doctrine, since the
point of doing so is to convert the T-shirt into a walking
billboard that conveys a selling message specific to an individual
product-- i.e., buy and smoke Marlboro cigarettes.").

[183] As discussed supra part III.B., corporate
speech is inconsistent with the notions of individual liberty and
self-fulfillment that are the basis of the self-realization theory
of the First Amendment. Thus, the argument that such speech is
expressive is runs into trouble upon trying to discern who doing
the expressing. Leo Burnett, supra note 33, at 42-44 argues
that the restrictions "impermissibly limilt] the creative range of
individual expression" by preventing people from wearing hats or
shirts with the logo of their choice. Though creative, the argument
is not on point-- the case would be a different one if the
expression at issue were that of private citizens and not intended
to propose commercial transactions.

[184]See also David A. Locke, Note,
"Counterspeech As An Alternative to Prohibition: Proposed Federal
Regulation of Tobacco Promotion in American Motorsport," 70 ND. L.
J. 217, 239 (1 994)(arguing that a challenge to proposal would
implicate the commercial speech doctrine).

[186]See, e.g., Wooley v. Maynard, 430 U.S. 705
(1977)("[T]he right to freedom of thought protected by the First
Amendment against state action includes both the right to speak
freely and the right to refrain from speaking at all"). This right
extends to corporations. See Turner Broadcasting Co. v. FCC,
114 S.Ct. 2445, 2458 (1994); Pacific Gas and Elec. Co. v. Public
Util. Comm'n, 475 U.S. 1, 16 (1986)("For corporations as for
individuals, the choice to speak includes within it the choice of
what not to say.").

[187] Riley v. National Fed'n of the Blind of North
Carolina, Inc., 487 U.S. 781, 800(1988).

[188] Association of National Advertisers, Inc.,
"Submission of the Association of National Advertisers, Inc. in
Connection with Proposed Regulations Restricting Advertising of
Cigarettes and Smokeless Tobacco Products," Docket No. 95N-0253,
51(1995) (hereinafter "ANA").

[194] The FDA cites Virginia Board, 425 U.S. at 771 n.
24 ("They may also make it appropriate to require that a commercial
message appear in such a form, or include such additional
information, warnings, and disclaimers, as are necessary to prevent
its being deceptive.") and In re R.M.J., 455 U.S. 191, 201
(1982)("warning or disclaimer might be appropriately required... in
order to dissipate the possibility of consumer confusion or
deception"). FDA Proposal, 60 Fed. Reg. at 41,355.

[202]See also Miami Herald Publishing v.
Tornillo, 418 U.S. 241, 258 (1974)(holding unconstitutional a
Florida law requiring newspapers who criticize a political
candidate's character or record to print a reply of equal
prominence and space).

[203]See, e.g., Ibanez v. Florida Department of
Business and Professional Regulation, 114 S.Ct. 2084
(1994)(striking down state law requiring a Certified Financial
Planner to include in advertisements the truthful statement that
CFP designation was granted by organization not affiliated with the
government); Riley v. National Federation of the Blind of North
Carolina, Inc., 487 U.S. 781 (1988)(striking down state requirement
that professional fundraisers disclose the percentage of funds they
paid to charities).

[208]Id.at 98. Indeed, when President Clinton
was asked at the news conference announcing the rules if they
violated the First Amendment, it was on this basis that he defended
them. "It is illegal for children to smoke cigarettes. How then can
it be legal for people to advertise to children to get them to
smoke cigarettes?" MacNeil/Lehrer NewsHour, August 10, 1995.

[217]Id. See also, ANA, supra note 188,
at 16 ("much could be said about whether the Executive branch's and
the FDA's interest is, in fact, the concededly substantial one of
protecting the health of minors now and in the future").

[221] Indeed, some aspects of its reasoning are clearly
so. For example, the FDA wholly disregards the footnote in Rubin
that expressly disavows both (1) a lower level of protection for
speech that advertises "socially harmful activities" and (2) the
greater-lesser power reasoning of Posadas. See Rubin, 115
S.Ct. at 1589 n.2. Undaunted, the FDA makes these arguments anyway
at 60 Fed. Reg. 41,355.

[225]id. at 1323, 1325. Cf. Sterling
Doubleday Enterprises, L.P. v. City of New York, No. 6855/94 , slip
op. (N.Y. Sup. Queens Cty. Dec. 8, 1994)(denying a preliminary
injunction that would have directed the removal a Marlboro
billboard facing the center field playing area in New York's Shea
Stadium). Noting that "concern for children may not be permitted to
cloud the dispositive factual and constitutional issues," the Court
held that the city failed "to establish that the particular sign in
issue is 'aimed' at children, or has in the past, or will in the
future, induce children to smoke cigarettes." Slip op. at 2.

[231] President Clinton himself claimed that "Joe Camel
tells young children that smoking is cool." "TeenAgers and
Tobacco," NEW YoRK TIMES, Aug. 11, 1995, at A18. The FDA argues
that tobacco industry documents reveal that "cigarette
manufacturers have conducted extensive research on smoking behavior
and attitudes in young people and how advertisements should be made
to appeal to young people." FDA Proposal, 60 Fed. Reg. at 41,329.
Indeed, such a strategy is necessary, according to the FDA, to the
economic health of the industry as a whole and individual firms in
particular. For example, the FDA proposal cites a document acquired
from the Canadian sister company of Brown & Williamson that
reads:
"If the last ten years has taught us anything, it is that the
industry is dominated by the companies who respond most effectively
to the needs of younger smokers." Id. at 41,331.

[232] FDA Proposal, 60 Fed. Reg. at 41,329. Moreover,
even campaigns not "so blatantly directed at juveniles,.., using
more universal themes can be as effective with young people."
Id. at 41,330.

[236] Id.at 41,329. The FDA claims that the tobacco
industry spent $6.2 billion in 1993 on the advertising, promotion,
and marketing of cigarettes and smokeless tobacco. Id. at
41,315.

[237]Id. at 41,332-333. For example, the FDA
cites "a recent Gallup survey Ithati found that 87 percent of
adolescents surveyed could recall seeing one or more tobacco
advertisements and that half could identify the brand name
associated with one of four popular cigarette slogans," Id.
at 41,332; a survey that found "a positive relationship between
smoking level and cigarette advertisement recognition," Id.;
a study of 640 Glasgow children that concludes that "cigarette
advertising has predisposing, as well as reinforcing, effects on
children's attitudes towards smoking and their smoking intentions."
Id.

[238]Id. at 41,333. The FDA cites numerous
studies of the notorious Joe Camel ad campaign, including a report
that found that "teenagers were twice as likely as adults to
identify Camel cigarettes as one of the two most advertised
brands." id. A study funded by R.J. Reynolds that found
"that 72 percent of 6 year olds and 52 percent of children between
the ages of 3 and 6 could identify Joe Camel." These rates
"exceeded recognition rates for Ronald McDonald," a "remarkable"
statistic given that Ronald McDonald appears on television during
children's viewing hours and cigarette advertising may not appear
on T.V. Id. The FDA also cites data collected in 1990 by
California researchers finding a that Camel experienced a 230
percent increase in its under 18 market share from (pre-Joe Camel)
1986 to 1990. Id.

[239]id. at 41,333-334. The FDA cites studies
of the experience of other nations showing a positive relationship
between advertising restrictions or bans and reductions in smoking
rates among young people.

[242]Id. at 6. Leo Burnett even makes the
clever, if unsubstantiated, claim that restricting tobacco
advertising "will do nothing more than make a tobacco product a
'forbidden fruit,'" thereby rendering it more attractive to
rebellious-minded teenagers. Id. at II.

[243] Leo Burnett argues that advertising theory
explains the lack of causation. Leo Burnett explains restricting or
banning advertising will not affect the incidence of children
smoking because "[ii t's not a~s~ of brand names that cause trial
and usage of products" in a mature market, which Leo Burnett claims
the tobacco market to be. Id. at 10-11. The "decision to
make a category purchase within a mature product category is
ALREADY made before advertising affects the brand choice within the
category." Id. at 6. A mature market is one that "ceases to
evolve very much"-- the market stage where "advertising functions
to merely shift customers from one brand to another, but does not
act as a stimulus to new customers to enter the market." Id.
at 12 (footnote omitted). See also ANA, supra note
188, at 29 ("The FDA Misunderstands the Role and Function of
Advertising in a Mature Market.")

[244] Tobacco Industry, supra note 215, at 26-27
(quoting FDA Proposal, 60 Fed. Reg. at 41,329-30). The lobby argues
that the decision to begin smoking is influenced by numerous
factors, but "predominantly by family and friends." Bork,
supra note 190, at 5. See also Leo Burnett,
supra note 33, at 35.

[246] Boddewyn stresses two recently completed official
investigations in particular. A 1990 Report of the Standing
Committee on Legislation of the Western Australian Parliament
concluded that
[ajfter receiving evidence from people eminent in relevant fields
of research, the Committee is forced to the conclusion that no
compelling evidence has been presented that advertising causes
people. and in particular young people, to begin smoking. The
strongest case presented to the Committee suggests that a mix of
personal and social factors acting together causes young people to
experiment with smoking. Among young people at risk, advertising
might well be influential in their decision, particularly regarding
the brands they choose. However, advertising in isolation from all
other factors shaping young people's lives has not been shown to be
a primary cause in their decision to begin smoking.Id. at 2. Boddewyn also cites the 1995 Supreme Court of
Canada decision invalidating Canada's ban on cigarette advertising,
which held that "[alt this point, [there is noti a clearly
understood causal connection between advertising, or any other
environmental factor, and tobacco consumption. Id. (citing
1995 SCJ No. 68, 21 September 1995. p. 54).

[247] Dept. Health and Human Services. Reducing the
Health Consequences of Smoking: 25 Years of Progress: A Report of
the Surgeon General. Office of Smoking and Health 512
(1989)(cired at Boddewyn, supra note 245, at 2). The
tobacco industry argues that the studies relied upon by the FDA
itself fail to conclude the existence of a causal relationship.
Tobacco Industry, supra note 215, at 30 and n.29.

[248] R.J. Reynolds Tobacco Co., FTC Release (statement
of Commissioners Azcuenaga, Owen and Starek), reprinted in
Tobacco Industry, supra note 215, at 27-28 ("If intuition
and concern for children's health were a sufficient basis under the
law for bringing a case, we have no doubt that a unanimous
Commission would have taken that action long ago... Indeed, our
concern about the health of children led us to consider every
possible avenue to a lawsuit before reaching today's
conclusion.").

[255] 115 5. Ct. 2371, 2377-78 (1995). The Florida
Bar majority noted that it did "not read our case law to
require that empirical data come to us accompanied by a surfeit of
background information." Id. at 2378.

[263] The FDA argues that because the evidence would
support a complete prohibition of tobacco advertising, the limited
restrictions proposed should be upheld. Id. A court seems
unlikely to give much weight to this bit of circular reasoning, and
would probably simply evaluate whether the evidence supports the
regulations actually proposed.

[264]See FDA Proposal, 60 Fed. Reg. at 41,335
("Recognizing that it is difficult to draw the line between
advertising that should be restricted or regulated and advertising
that does not pose an unreasonable risk of influencing young
people, the agency requests comment on the appropriateness of the
proposed regulations and whether other alternatives would be more
appropriate or effective.")

[268] Fox, 492 U.S. at 479 (citation omitted). Florida
Bar is also persuasive authority for the proposition that a
concededly over-inclusive restriction of commercial speech may
still satisfy the fourth prong, though the regulation at issue
there was only temporary. 115 S. Ct. at 2380.

[273] FDA Proposal, 60 Fed. Reg. at 41,322. Evidence
suggests that state laws prohibiting sales to minors are not
vigorously enforced. One study cited by the ANA, supra note
188, at 47, reports that "67 percent of minors with an average age
of 15 were asked no questions when they attempted to purchase
cigarettes."

[275] 352 U.S. 380, 383 (1957); see also Bolger
v. Youngs Drug Products Corp., 463 U.S. 60, 74 ("The level of
discourse reaching a mailbox simply cannot be limited to that which
would be suitable for a sandbox.").

[288]See Kozinski and Banner, supra note
1, at 752 ("If all it takes to remove First Amendment protection
from a given kind of speech is that a sufficiently large nnmber of
people finds the speech less valuable than other kinds, we may as
well not have a First Amendment at all. Such an understanding of
the First Amendment-- according to which speech not valued by a
majority receives no protection-- throws all speech regulation
questions back into the political arena.")

[303] Leo Burnett, supra note 33, at 26, points
to the example of Australia, where a government official reassured
advertisers that its newly enacted ban on tobacco advertising did
not mean that it would be "'alcohol and chocolates tomorrow.'" One
year after the tobacco ban became law, "the movement against
alcohol advertising began." id. (footnote omitted).

[304]See comments of Thomas Lauria, assistant
to the president of the Tobacco Institute, reprinted in
Bureau of National Affairs Health Care Daily, Oct. 19, 1995.

[305] In Carey v. Population Services International,
431 U.S. 677 (1977), the Court held unconstitutional a New York
statute that prohibited the advertising and display of
contraceptives, a statute enacted, in part, because such
advertising allegedly "legitimia led]" illicit sexual behavior in
the eyes of minors. The Court held that the speech in question
failed the Brandenberg test described supra pages 67-68.
Id. at 701. A government seeking to enact a similar
prohibition could point out that Brandenberg was decided before
Central Hudson, the test that would be applied today and, if the
FDA's reasoning is accepted, might permit such a ban.